st - AARP · Case 6:16-cv-01282-JTM-GEB Document 1 Filed 07/11/16 Page 1 of 92. COMPLAINT COME NOW the Named Plaintiffs D0netta Raymond, Frederick Heston, Jilun Sha, Randy Williams,

Randall K. Rathbun #09765

DEPEW GILLEN RATHBUN & MCINTEER LC

8301 E. 21st Street North, Suite 450

Wichita, KS 67206-2936

Telephone: (316) 262-4000

Fax: (316) 265-3819

Email: [email protected]

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

DONETTA RAYMOND, FREDERICK HESTON, )

JILUN SHA, RANDY WILLIAMS, )

WILLIAM SCOTT DENNY, DEBRA HATCHER, )

BRIAN MARKS, RUSSELL BALLARD, )

GREGORY BUCCHIN, BRUCE ENSOR, )

FORREST FARIS, CHERYL RENEE GARDNER, )

CLARK T. HARBAUGH, CRAIG HOOBLER, )

BRIAN SCOTT JACKSON, WILLIAM KOCH, )

FRED LONGAN, DAVID B. MILLER, )

KENNETH L. POOLE, JR., BAHRAM RAHBAR, )

RUSSELL SPRAGUE, CRAIG TOLSON, )

ROBERT TROILO and CURTIS J. VINES, )

on behalf of themselves and all others )

similarly situated, )

)

Plaintiffs, )

)

vs. ) Case No.

)

SPIRIT AEROSYSTEMS HOLDINGS, INC. and )

SPIRIT AEROSYSTEMS, INC., )

)

Defendants. )

__________________________________ )

Case 6:16-cv-01282-JTM-GEB Document 1 Filed 07/11/16 Page 1 of 92

COMPLAINT

COME NOW the Named Plaintiffs D0netta Raymond, Frederick Heston,

Jilun Sha, Randy Williams, William Scott Denny, Debra Hatcher, Brian Marks,

Russell Ballard, Gregory Bucchin, Bruce Ensor, Forrest Faris, Cheryl Renee

Gardner, Clark T. Harbaugh, Craig Hoobler, Brian Scott Jackson, William Koch,

Fred Longan, David B. Miller, Kenneth L. Poole, Jr., Bahram Rahbar, Russell

Sprague, Craig Tolson, Robert Troilo and Curtis J. Vines, on behalf of themselves

and all others similarly situated, through their attorneys, and for their cause of

action against the defendants, allege as follows:

I. INTRODUCTION

A. Summary of the Case

1. This is a collective action initiated by twenty-four former Wichita-

based aerospace engineers and other salaried, non-management employees, for

themselves and others similarly situated, under the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621-34 (“ADEA”), against their former employer,

aerospace manufacturer Spirit AeroSystems, Inc. (and its owner, Spirit

AeroSystems Holdings, Inc., hereafter collectively “Spirit” or the “Company”),

challenging their termination from employment on or about July 25, 2013 and

Spirit’s later exclusion of them from new job openings. The Named Plaintiffs also

assert individual ADEA claims, and some bring claims under the Americans with

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Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) and/or the Family and

Medical Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”).

2. The Named Plaintiffs are age 40 or above, skilled, experienced,

union-represented aerospace workers with solid (or better) work records. They

and/or their family members had significant, costly and/or potentially costly

medical conditions (and/or a record thereof), while covered by Spirit’s employee

health insurance. Spirit’s senior management believed, based on knowledge of

such conditions, that older employees, including the Named Plaintiffs

(themselves, their family members or both) posed a high risk of incurring large

medical costs that Spirit would be solely responsible for paying, due to the

company becoming “self-insured” on July 1, 2013.

3. The Named Plaintiffs seek relief – for themselves and approximately

one hundred and sixty similarly situated older, union-represented, formerly

Wichita-based Spirit employees – from Spirit’s misconduct arising from its

centrally planned and administered group layoffs that targeted and/or

disproportionally affected older employees, including them, and also from Spirit’s

failures and refusals to rehire them. The Named Plaintiffs contend that Spirit

acted with the purpose and effect of discriminating against them and others like

them based on age and disability to avoid large healthcare claims that the

Company believed they would incur.

4. The Named Plaintiffs contend that they and similarly situated,

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union-represented, former Spirit employees age 40 and over (hereafter

“Plaintiffs”) were harmed by decisions, policies, practices, and plans developed

and orchestrated at upper levels of Spirit’s management beginning in 2012,

culminating on or about July 25, 2013, and continuing to the present in the form

of the ongoing failure and refusal to hire Plaintiffs who were terminated in July

2013 and who remain interested in filling open positions at Spirit for which they

are qualified.

B. Summary of the Facts

5. By the fall of 2012 or even earlier, Spirit’s senior management had

for years tracked the age demographics of its workforce together with the cost and

incidence of medical conditions experienced by its workers and their family

members covered by Spirit’s health plan. During this time Spirit studied how to

reduce those costs. With the aid of health insurance consultants and

administrators, senior management carefully examined the cases of covered

workers (and family members) whose care expenses qualified them as “high cost

claimants,” and also categories of claimant medical conditions whose great

expense qualified them as “cost drivers.” By this time, Spirit’s senior

management believed that specific categories of medical conditions, including

diabetes, back ailments, heart disease, hypertension and cancers, all of which are

disproportionately experienced by persons age 40 and above, were critical health

“cost drivers” for the Company. Spirit was determined to reduce its ranks of older

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workers, and what the Company assumed to be their related, unacceptably high

health costs.

6. By the fall of 2012 or even earlier, Spirit was actively planning to fire

hundreds of employees at its Wichita plant and other facilities in 2013. The

Company went to great lengths to keep the nature and scope of its plans secret.

Spirit also undertook substantial efforts to punish (and thereby to further

discourage) internal dissent regarding these plans. The Company carried out

several waves of terminations (some of them forced resignations or retirements

“in lieu of termination” constituting constructive discharges) in early 2013. These

terminations affected older workers with significant, costly and/or potentially

costly medical conditions (and/or family members with the same). They also

affected lower-level (mostly “first-level”) managers who resisted pressure from

senior management to identify subordinates to be given artificially lower

performance ratings. These managers knew that such lower ratings could

facilitate their subordinates’ termination, and they did not believe their

subordinates’ performance justified lower ratings or dismissal.

7. Spirit’s plans culminated in a July 25, 2013 “reduction-in-force”

(“RIF”) in which the Company fired the Named Plaintiffs and more than three

hundred other (mostly older) workers. Spirit gave affected employees – including

the Named Plaintiffs and approximately one hundred and sixty other older

unionized workers at Spirit’s Wichita plant – no warning of the RIF and virtually

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no information about the reasons for their inclusion in the RIF. The Company has

continued to discriminate against Plaintiffs and other similarly situated older

workers by failing and refusing to consider those terminated in July 2013 for

hundreds of new salaried and other job openings that Spirit has filled since then,

and is still filling. Many of these openings involved jobs similar to those held by

the Plaintiffs before their termination.

8. Spirit has claimed that it chose Plaintiffs and others like them for

discharge, and has refused to rehire them, on lawful grounds, principally their

supposed poor performance. Yet Plaintiffs had positive, not poor work records,

until their most recent performance reviews, which took place in late 2012 and

early 2013, after Spirit’s planning for its 2013 RIF program was well underway.

Spirit assigned many Named Plaintiffs and similarly situated older workers

uncharacteristically low performance evaluation (or “PM”) scores and “retention

ratings”1 in their most recent reviews before the July 2013 RIF. Spirit also

directed some of them to satisfy a “performance improvement plan” (PIP) based

on these atypical ratings.

9. Spirit has acknowledged that in 2012 and 2013, in the lead-up to the

July 2013 RIF, the Company’s centrally-administered Human Resources function

1 The collective bargaining agreement for the Society of Professional Engineering Employees inAerospace (“SPEEA”), of which all Named Plaintiffs are members, defines a “retention rating”as “a comparative rating . . . giving consideration to each employee’s competence, diligence anddemonstrated usable capabilities based upon the employee's current performance and a review ofthe employee's previous performance.” 2012 SPEEA Collective Bargaining Agreement at 19.

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“oversaw” corporate employee evaluation efforts, i.e., both Spirit’s “2012

performance management exercise” and its “entire 2013 retention rating

process.” The result of these efforts was that Spirit downgraded the performance

ratings of, and on that basis selected for termination, a much greater proportion

of older workers than younger workers from among its union-represented

Wichita-based workforce. Spirit has claimed that it simply wanted to end “grade

inflation” in employee ratings. Yet this assertion cannot explain the Company’s

disproportionate pattern of downgrading and terminating older, rather than

younger workers.

10. During the 2012-13 period, Spirit implemented employee

performance reviews in a very uneven-handed manner by age. For instance, in

early 2013 Spirit assigned lower 2012 PM ratings to older (age 40 or over)

Wichita-based, union-represented workers at a disproportionally higher rate.

Over half of all such older workers with a high previous PM rating – more than

400 older Spirit employees – received a lower, midrange PM rating in 2013. By

contrast, Spirit similarly reduced PM ratings for less than a third of comparable

workers under age 40. In addition, Spirit downgraded twice as large a share of

older workers with a prior high or midrange rating to one of the lowest PM rating

levels. In both cases, these age-related differences are statistically significant and

highly unlikely to have occurred by chance.

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11. Then in mid-2013, just before the July 2013 RIF, Spirit once again

downgraded a disproportionate share of Wichita-based, union-represented older

(age 40 and above) workers by assigning them the lowest possible (“C”) retention

rating after giving them a higher grade in the Company’s prior retention rating

exercise, eighteen months before. While Spirit downgraded more than 160 older

workers to a “C” in 2013, it did the same to fewer than 20 employees under age

40. Spirit achieved this numerical imbalance by downgrading approximately

twice the proportion of older workers than comparable younger employees. The

age-related disparities between these results also are statistically significant and

unlikely to have occurred by chance.

12. The July 2013 RIF was unique in that Spirit, for the first and only

time, “designated” hundreds of SPEEA-represented employees who received “C”

retention rating (on an A to C scale) – not just a handful, as in the past – and

thereby denied most Plaintiffs and other older longtime employees: (a) a “bump”

up to a “B” (for those not designated, with at least 20 years’ tenure), that would

have protected them from layoff; and (b) “recall rights” that would have required

Spirit to return them to work should a comparable position become available.

13. Further, Spirit terminated a much higher percentage of “designated,”

C-retention-rated, low-PM-rated older workers than younger workers in July

2013. Spirit selected for the RIF more than three-quarters (75%) of those C-rated

and age 40 or above, but less than 60% of those C-rated and under age 40. Spirit

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terminated more than 100 – over 50% – of all older low-PM-rated employees in

2013, but fewer than 10 and less than 25% – i.e., less than half as great a

proportion – of low-PM-rated younger employees. These differences in Spirit’s

treatment of its union-represented workers age 40 and above and below age 40

are also statistically significant.

14. In September 2013, by contrast, Spirit conducted a RIF without

designating, and thus without terminating, large numbers of C-rated employees.

15. Given these and other anomalies, Plaintiffs submit that Spirit fired

them and refused to rehire them (and others similarly situated) despite their solid

(or better) performance because of their age, as well as their and/or their family

members’ health status, and the costs (or anticipated costs) Spirit believed to be

associated with their health status, which Spirit supposed to be related to

Plaintiffs’ older age. Moreover, Plaintiffs contend that Spirit’s reliance on

unreasonable non-age factors, and in particular Plaintiffs’ and/or their family

members’ health status, had the same adverse effect on Plaintiffs (and others

similarly situated) as intentional age bias. Some individual Plaintiffs also assert

that Spirit subjected them to discrimination in terminations and hiring due to

their disabilities (and/or their association with a family member with a disability)

and/or their use of federally-protected FMLA leave.

16. On July 1, 2013, just weeks before the July 25, 2013 RIF, Spirit

became “self-insured.” In doing so, the Company assumed full liability for paying

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employee medical claims covered by Spirit’s health insurance plan. Many

employers avoid such risk by paying health insurers a regular fee to cover each

employee’s claims, the cost of which cannot be predicted in advance. However,

Spirit elected to assume such risks itself. Moreover, the Company did so without

purchasing “reinsurance” (or “stop-loss” insurance), a common risk mitigation

strategy for “self-insured” employers designed to shift risk back to an insurance

carrier in the form of a duty to pay large employee health insurance claims,

usually in excess of a fixed amount.

17. Spirit had, by virtue of its adoption of this risk-taking approach, as of

July 1, 2013, a powerful new incentive to fire workers with significant, costly

and/or potentially costly health conditions in order to avoid large health

insurance claims for which the company had become solely responsible. To this

day, Spirit continues to have this incentive: it is still fully liable to its unionized,

salaried, Wichita employees for reimbursement of their claims, whatever they

may be, on the Spirit employee health insurance plan.

18. Spirit’s senior management carried out the July 2013 terminations

under the powerful influence of an assumption that the Company’s Wichita-

based, union-represented, salaried employees with significant, costly and/or

potentially costly health conditions were older, and also a further assumption that

such employees posed a serious threat of incurring significant medical expenses

for which Spirit would be solely responsible under its self-insured employee

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health insurance plan. Based on these same influential assumptions, Spirit’s

senior management also subsequently refused to rehire these individuals for

numerous job openings for which they were qualified. As a result, Spirit made

selections for the July 2013 RIF (and prior terminations in March and May 2013),

and later made hiring decisions with the purpose and effect of denying

employment opportunities to older employees and job applicants with such

health conditions.

19. After firing hundreds of mostly older salaried employees in March,

May and July 2013, Spirit embarked on a self-proclaimed "hiring blitz".

Beginning with a “Job Fair” in September 2013, and continuing into 2014, Spirit

took on hundreds of new employees for open positions in Wichita. The Company

continued to advertise and fill open positions in Wichita, including many salaried

positions, during 2014 and 2015, and the first half of 2016. By the middle of

2014, Spirit had filled approximately 140 salaried, SPEEA-represented positions

at its Wichita facility since July 2013. By the middle of 2015, that number had

grown to more than 400 salaried positions. By the middle of 2015 Spirit had

filled more than 600 salaried positions in Wichita since the July 2013 layoffs.

While nearly 75% of Spirit’s SPEEA-represented Wichita workforce was age 40

and over on July 1, 2013, approximately 60% of those Spirit hired for such jobs in

each of the next two years were under age 40.

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20. Many of the Plaintiffs fired in July 2013 applied for open positions

advertised during and after the "hiring blitz.” Some Plaintiffs applied to jobs

similar (in some cases they appeared to be virtually identical) to those they held

at the time of the RIF. Others sought positions they had filled at the Company

before July 2013; still others applied for jobs involving skills matching theirs that

they believed they could perform well.

21. Yet at the September 2013 Job Fair and thereafter, Spirit hired none

of the Named Plaintiffs (nor, on information and belief, any others similarly

situated) for jobs for which they were qualified. Rather, on information and

belief, Spirit declined to consider and/or caused to be ignored, rejected or

screened out, the job applications and/or resumes submitted by the Named

Plaintiffs and others similarly situated, even though others competing for the

same jobs were younger, less qualified and/or less experienced. In addition, on

information and belief, others competing for the same jobs were not known to

have significant, costly and /or potentially costly medical conditions, and/or a

record of the same, and/or family members with such conditions.

22. Some older workers terminated in July 2013 did not later apply for

open positions at Spirit, including jobs for which they were well-qualified,

because they justifiably believed that doing so would be futile. These “deterred

applicants” relied on reports, including from former Spirit co-workers, of Spirit’s

discouragement and/or rejection of the applications of older workers terminated

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in July 2013. Examples of such discouragement include Spirit’s different, adverse

treatment of the applications of July 2013 terminees at the September 2013 Job

Fair, and Spirit’s consistent rejection of qualified applicants from that group since

then.

23. Still other older workers terminated in July 2013 applied for one or

more Spirit jobs for which they were qualified, but later were deterred from

applying for other Spirit jobs because their own experiences, and/or those of

others similarly situated of which they learned, convinced them of Spirit’s

determination not to hire them and thus, the futility of applying again.

C. Summary of the Claims

24. This ADEA collective action consists of three related challenges to

Spirit’s misconduct connected to the July 2013 RIF. In each, the Named Plaintiffs

assert that Spirit’s centralized decision-making produced policies, practices,

actions and inactions causing injuries to them and similarly situated union-

represented workers age 40 and above who may opt-in to this collective action.

25. First, the Named Plaintiffs assert a termination claim for themselves

and other former Wichita-based Spirit salaried workers, age 40 and older, who

were represented by SPEEA and who were terminated in July 2013. Available

records show that there are approximately 160 persons other than the Named

Plaintiffs in this category of potential “Opt-In Plaintiffs.” The Named Plaintiffs

contend that Spirit engaged in two forms of illegal age bias: intentional

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discrimination (“disparate treatment”) (Count One); and implementation of age-

neutral policies and practices with an unjustified (i.e., not “reasonable”) adverse

effect on older workers (“disparate impact”) (Count Two).

26. Second, this collective action also addresses the fact that in July

2013, Spirit required the Named Plaintiffs and other potential members of the

proposed collective to sign a waiver of claims, including ADEA claims, in order to

receive severance benefits. Nineteen of the Named Plaintiffs signed such a

waiver. These nineteen contend for themselves and others similarly situated that

their waiver of ADEA claims was invalid under the Older Worker Benefits

Protection Act amendments to the ADEA, 29 U.S.C. § 621, 626(f) (OWBPA), as

Spirit failed to comply with the OWBPA’s strict information disclosure

requirements (Count Three). As a result, these waivers were not “knowing and

voluntary” and do not bar the signers’ claims.

27. Third, this collective action concerns Spirit’s failure and refusal to

rehire the Named Plaintiffs and others similarly situated who were terminated in

the July 2013 RIF. Since July 25, 2013, 19 of the 24 Named Plaintiffs and at least

fifteen other potential Opt-In Plaintiffs have applied for rehire by Spirit, without

success, to jobs for which they were qualified.

28. Moreover, four Named Plaintiffs and, on information and belief,

many other potential members of the proposed collective, have been discouraged

and deterred from applying for open positions at Spirit for which they were

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qualified. Spirit’s discriminatory policies have discouraged and deterred them

from applying for any open positions at Spirit, either from July 2013 on, or after

they applied unsuccessfully for one or more specific positions since July 2013.

They have reached the justifiable conclusion that Spirit has a policy and/or a

practice of refusing to rehire employees terminated in July 2013, and that

accordingly, applying for rehire would be futile, regardless of their qualifications.

The purpose (Count Four) and effect (Count Five) of Spirit’s hiring policies and

practices is alleged to be because of age violating the ADEA rights of the affected

Named Plaintiffs and others similarly situated.

29. The Named Plaintiffs also state individual claims against Spirit based

on its misconduct related to the July 2013 RIF. Each asserts individual ADEA

claims founded on the same grounds asserted in support of their collective action

claims in Counts One through Five. Further, the five Named Plaintiffs who did

not sign a waiver of claims (Raymond, Heston, Hatcher, Bucchin and Jackson)

challenge their terminations as violating the Americans with Disabilities Act of

1990, as amended, 42 U.S.C. §§ 12101, et seq. (ADA) (Count Six). Of these five,

three (Hatcher, Heston and Jackson) also challenge their terminations as

discrimination related to their use of protected leave, in violation of the Family

and Medical Leave Act of 1993, as amended, 29 U.S.C. §§ 2601, et seq. (FMLA)

(Count Seven).

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30. Twenty-three Named Plaintiffs assert individual claims of hiring

discrimination by Spirit in violation of the ADA (Count Eight). Six of the twenty-

three also assert individual claims of hiring discrimination related to their use of

FMLA leave before their July 2013 discharge (Count Nine).

31. Plaintiffs seek the following relief: an order declaring that the waiver of

claims in Spirit’s severance agreement related to the July 2013 RIF is invalid with

regard to ADEA claims because it violates the OWBPA; an order permitting the

Named Plaintiffs to proceed with a collective action and to allow others similarly

situated to opt-in thereto; an order tolling time limits on the right of others

similarly situated to the Named Plaintiffs to file ADEA and ADA like those they

have stated herein; a permanent injunction against Spirit’s discriminatory

policies and practices in carrying out the RIF and in failing and refusing to rehire

older workers terminated in the RIF; lost wages and liquidated damages,

pursuant to the ADEA, due to (a) the unlawful termination of the Named

Plaintiffs and others who may opt-in to this case, as well as (b) Spirit’s failure and

refusal to rehire the Named Plaintiffs and others terminated in the RIF; lost

wages and liquidated damages, attributable to Spirit’s retaliatory failure and

refusal to rehire Named Plaintiffs with individual FMLA claims; compensatory

and punitive damages, pursuant to the ADA, attributable to Spirit’s unlawful

terminations and failures and refusals to rehire Plaintiffs with individual ADA

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claims; and reasonable costs and attorney’s fees incurred in this case by the

Named Plaintiffs and others who opt-in to this action.

II. JURISDICTION AND VENUE

32. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331

and 1343. This action is authorized and instituted pursuant to: the ADEA, 29

U.S.C. §§ 626(c) and 626(b), the latter of which incorporates 29 U.S.C. § 216(b);

Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates Sections

706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §

2000e-5(f)(1) and (3), as well as Section 102 of the Civil Rights Act of 1991, 42

U.S.C. § 1981a; and 29 U.S.C. § 2617(a) of the FMLA.

33. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because

all of the unlawful employment practices alleged herein were committed, and also

had their principal impact, within the jurisdiction of the United States District

Court for the District of Kansas.

III. EXHAUSTION OF CLAIMS

34. All procedural prerequisites for filing this suit have been met.

A. ADEA Termination & Waiver Claims (Collective Action andIndividual Claims)

35. Each of the Named Plaintiffs timely filed charges of age

discrimination with the Equal Employment Opportunity Commission (EEOC), on

behalf of themselves and all others similarly situated. The Named Plaintiffs

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alleged, inter alia, that Spirit terminated them, and also subsequently failed and

refused to consider them for rehire into open positions for which they were

qualified, in violation of the ADEA, based on both disparate treatment and

disparate impact theories of discrimination. The Named Plaintiffs filed these

charges (the “Initial Charges”) between March 26, 2014 and May 21, 2014,within

300 days of the July 23, 2013 terminations, and also within 300 days of Spirit’s

discrimination against them in hiring, including at the September 2013 Job Fair.

36. The Initial Charges filed by nineteen Named Plaintiffs also timely

invoked the OWBPA amendments to the ADEA as the basis for challenging, on

behalf of themselves and others similarly situated, the validity of the waiver Spirit

required terminated employees to sign in order to receive severance benefits in

connection with the July 2013 RIF.

B. ADEA Failure to Hire Claims (Collective Action andIndividual Claims)

37. Subsequent to their terminations by Spirit, nineteen Named

Plaintiffs applied for available positions with the Company for which they were

qualified, but Spirit did not hire them. Sixteen of these individuals timely filed

separate charges of discrimination with the EEOC on behalf of themselves and all

others similarly situated challenging Spirit’s failure and refusal to hire them. The

sixteen filed these charges between July 8, 2014 and February 23, 2015, within

300 days of Spirit’s hiring discrimination against the Named Plaintiffs, including

at the September 2013 Job Fair and numerous subsequent acts of hiring

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discrimination. These charges (the “Failure to Hire Charges”) alleged, inter alia,

that Spirit engaged in age discrimination in hiring in violation of the ADEA under

both disparate treatment and disparate impact theories. For purposes of

satisfying exhaustion requirements regarding their ADEA failure to hire claims,

three of the nineteen Named Plaintiffs who applied for rehire by Spirit (Denny,

Ensor and Sprague) rely on the EEOC charges of the other sixteen.

38. Four other Named Plaintiffs (Sha, Koch, Poole and Tolson) did not

apply for rehire into specific open positions. However, their Initial Charges – as

well as the Initial Charges of all other Named Plaintiffs, and all sixteen Failure to

Hire Charges – contain allegations stating age discrimination in hiring claims, on

behalf of the filers and others similarly situated, in their capacity as applicants

deterred from applying for open positions for which they were qualified.

Specifically, these charges contend: that Spirit engaged in hiring discrimination,

beginning at the September 2013 Job Fair and continuing thereafter, by applying

a policy and practice of rejecting applications for reemployment to applicants

fired in July 2013; that this policy and practice resulted in no jobs for July 2013

terminees equivalent to those they held before their termination; and finally, that

the purpose and effect of Spirit’s conduct, including its consideration of the

medical conditions of the July 2013 terminees (and of their family members), was

age discrimination.

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39. Hence, these charges may be relied on by persons similarly situated

to the Named Plaintiffs who have applied and been rejected because of Spirit’s

age-discriminatory hiring policies and practices and by those similarly situated to

the Named Plaintiffs who have been deterred by Spirit from applying (or from

applying further) because such efforts would be futile.

40. This Complaint and Jury Demand is being filed more than 60 days

after the timely filing of all ADEA charges described above with the EEOC, as

required by 29 U.S.C. § 626(d).

C. ADA and FMLA Individual Termination Claims

41. The five Named Plaintiffs who did not sign waivers of claims in

connection with their termination in July 2013 (Raymond, Heston, Hatcher,

Bucchin and Jackson) also assert individual termination claims based on the

ADA. They timely asserted such claims in EEOC charges also containing their

ADEA termination claims. Each Named Plaintiff asserting an ADA termination

claim contends that they and/or family members covered by Spirit health

insurance had and still have one or more disabilities, and/or were regarded by

Spirit as having one or more disabilities, and/or had a record of having one or

more disabilities, based on which Spirit terminated each of the Named Plaintiffs

in July 2013. Each of these five Named Plaintiffs’ ADA charges were pending in

the EEOC for more than 180 days, and each received a Notice of Right to Sue

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from the EEOC which encompassed their ADA claim(s). This Complaint is being

filed within 90 days from the issuance and receipt of such Notices.

42. Three Named Plaintiffs who did not sign waivers when they were

terminated in July 2013 (Hatcher, Heston and Jackson) also assert individual

retaliatory termination claims based on the FMLA. No administrative exhaustion

requirements apply to these claims.

D. ADA Individual Failure to Hire Claims

43. The twenty-three Named Plaintiffs who assert ADEA failure to hire

claims also assert individual ADA failure to hire claims. Sixteen filed Failure to

Hire Charges with the EEOC including such individual ADA claims. Three others

who applied for rehire by Spirit (Denny, Ensor and Sprague) rely – for purposes

of satisfying exhaustion requirements regarding their ADA failure to hire claims –

on the EEOC failure to hire charges of the other sixteen. The other four (Sha,

Koch, Poole and Tolson) are “deterred applicants” protected by the ADA on

grounds similar to those supporting their ADEA failure to hire claims, including

the “deterred applicant” allegations contained in their EEOC “termination

charges.”

44. All the Named Plaintiffs’ EEOC charges contain failure to hire and

deterred applicant contentions on behalf of all SPEEA-represented older workers

with disabilities terminated in the July 2013 RIF. Thus, these charges all may be

relied on by former Spirit employees who have applied and been rejected for

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rehire because of their known disabilities, and/or the known disabilities of their

family members, and/or their prior protected activity pursuant to the ADA,

and/or because of Spirit’s discriminatory disability-based hiring policies and

practices. Likewise, such charges may be relied on by all former Spirit employees

terminated in the July 2013 RIF who have been deterred from applying for rehire

by Spirit because doing so would be futile due to Spirit’s systematic hiring

discrimination against those with disabilities terminated in July 2013. The

named plaintiffs reserve the right to move to supplement the Complaint to specify

the opt-in plaintiffs who assert such individual claims.

45. Each Named Plaintiff asserting an ADA failure to hire claim contends

that they and/or family members covered by Spirit health insurance had (and in

most cases still have) one or more disabilities, and/or were regarded by Spirit as

having one or more disabilities, and/or had a record of having one or more

disabilities, based on which Spirit failed and refused to rehire them following

their July 2013 termination. Twelve Named Plaintiffs (Heston, Sha, Williams,

Denny, Hatcher, Ballard, Ensor, Faris, Jackson, Miller, Rahbar and Sprague)

alleged to the EEOC and now claim that Spirit subjected them to discrimination

in hiring on grounds of disability because of their association with one or more

family members on their Spirit health insurance who had a perceived disability,

and/or an actual disability, and/or a record thereof.

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46. Each of these sixteen Named Plaintiffs’ ADA failure to hire charges

were pending in the EEOC for more than 180 days, and on May 31, 2016, the

EEOC issued to all sixteen individuals a Notice of Right to Sue related to their

charges. This Complaint and Jury Demand is filed within 90 days of the issuance

and receipt of these Notices.

E. FMLA Individual Failure to Hire/Retaliation Claims

47. Finally, six Named Plaintiffs assert individual FMLA failure to hire

claims, contending that Spirit failed and refused to rehire them, following their

termination by Spirit in July 2013, in retaliation for their having used FMLA leave

while employed at Spirit prior to their termination. No administrative exhaustion

requirements apply to these claims. The named plaintiffs reserve the right to

move to amend this Complaint to add timely additional failure to rehire claims by

one or more of the opt-in plaintiffs.

IV.PARTIES

A. Plaintiffs

48. Plaintiff Donetta Raymond is a Kansas resident and former Spirit

Wichita plant employee. She was 59 years old when Spirit terminated her

employment on or about July 25, 2013, despite a record of solid (or better) job

performance, after approximately 25 years of service at Spirit and its predecessor,

Boeing. As of July 1, 2013, Ms. Raymond had Spirit self-insured employee health

insurance, under which Spirit was fully responsible for reimbursing health

23


insurance claims by Ms. Raymond. She had several significant, costly and/or

potentially costly medical conditions (including heart disease, blood clots in her

lungs, thyroid disease and reflux) in the period leading up to her termination by

Spirit, and also later, including when she applied for several open positions with

Spirit for which she was qualified, but was not rehired. One or more of these

conditions, which were known to Spirit, constituted an ADA “disability.”2

49. Plaintiff Frederick Heston is a Kansas resident and former Spirit

Wichita plant employee. He was 56 years old when Spirit terminated his


performance, after over 8 years of service at Spirit and its predecessor, Boeing.

As of July 1, 2013, Mr. Heston and his wife both had Spirit self-insured employee

health insurance. Both Mr. Heston and his wife had significant, costly and/or

potentially costly medical conditions (including an antibiotic-resistant infection

(MRSA) – him; and diabetes and breast cancer – her) leading up to Mr. Heston’s

termination by Spirit, and also later, including when Mr. Heston applied for

several available positions with Spirit for which he was qualified, but was not

rehired (including at a Spirit job fair in August 2014). Mr. Heston also took

2 The medical conditions of each Named Plaintiff and cited family member satisfy the ADA’sthree-part definition of “disability,” 42 U.S.C. § 12102(1), because, at a minimum, they are ADA“impairments,” 29 C.F.R. § 1630.2(h). The Named Plaintiffs allege, inter alia, that they andtheir family members all are “regarded as having” an ADA disability as they have “beensubjected to an action prohibited [by the ADA] because of an actual or perceived . . . impairmentwhether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §12102(3)(A).

24


FMLA leave in 2013 to care for his own serious medical conditions. One or more

of Mr. and Mrs. Heston’s conditions, which were known to Spirit, satisfied the

requirements of ADA “disabilit[ies]” and also “serious medical condition[s]”

under the FMLA.

50. Plaintiff Jilun Sha was a Kansas resident and a 62-year-old Spirit

Wichita plant employee when Spirit terminated his employment on or about July

25, 2013, despite a record of solid (or better) job performance. Mr. Sha now

resides in Alabama. In July 2013, Mr. Sha had worked for approximately 13 years

at Spirit and its predecessor, Boeing. As of July 1, 2013, Mr. Sha and his wife both

had Spirit self-insured employee health insurance. In the period leading up to

Mr. Sha’s termination by Spirit and thereafter, his wife experienced significant,

costly and/or potentially costly medical conditions, including a brain tumor and

lung cancer. One or more of these conditions, which were known to Spirit,

constituted an ADA “disability.” Spirit’s discriminatory hiring policies in regard

to employees terminated in July 2013 discouraged and deterred Mr. Sha from

applying for any open positions with Spirit for which he was qualified following

his termination.

51. Plaintiff Randy Williams is a Kansas resident and former Spirit

Wichita plant employee. He was one day shy of his 52nd birthday when Spirit

terminated his employment on July 25, 2013, despite a record of solid (or better)

job performance, after more than 27 years of service at Spirit and its predecessor,

25


Boeing. As of July 1, 2013, Mr. Williams and his wife both had Spirit self-insured

employee health insurance. They had several significant, costly and/or

potentially costly medical conditions (including diabetes and high blood pressure

– him; and multiple sclerosis – her) in the period leading up to Mr. Williams’

termination by Spirit, and also later, including when he applied for numerous

open positions with Spirit for which he was qualified, but was not rehired. For

Mr. Williams and for his wife, one of more of their conditions, which were known

to Spirit, satisfied the requirements of an ADA “disability.” After Mr. Williams

filed a second EEOC charge, Spirit finally offered him re-employment, but at a

lower rate of pay and a lower level of responsibility than he had before his

termination. By that time, Mr. Williams had secured another job with a different

employer at a higher rate of pay than what Spirit was offering for an entry-level

position.

52. Plaintiff William Scott Denny is a Kansas resident and former Spirit



performance, after approximately 27 years of service with Spirit and its

predecessor, Boeing. As of July 1, 2013, Mr. Denny and his wife both had Spirit

self-insured employee health insurance. Both Mr. and Mrs. Denny had

significant, costly and/or potentially costly medical conditions (including diabetes

– him; and lupus and Raynaud’s disease – her) in the period leading up to Mr.

26


Denny’s termination, and also later, including when Mr. Denny applied for one or

more open positions with Spirit for which he was qualified, but was not rehired.

One of more of Mr. and Mrs. Denny’s conditions, which were known to Spirit,

satisfied the requirements of ADA “disabilit[ies].”

53. Plaintiff Debra Hatcher is a Kansas resident and former Spirit



performance, after more than five years at the company. As of July 1, 2013, Ms.

Hatcher and her husband had Spirit self-insured employee health insurance. Mr.

Hatcher had significant, costly and/or potentially costly medical conditions

(including non-alcoholic cirrhosis of the liver, causing him to be on a liver and

kidney transplant list) in the period leading up to his wife’s termination by Spirit,

and also later, including when Ms. Hatcher applied for several open positions

with Spirit for which she was qualified, but was not rehired. Ms. Hatcher also

took FMLA leave in 2012 to care for one or more of her husband’s conditions

during her employment with Spirit. One or more of Mr. Hatcher’s conditions,

which were known to Spirit, satisfied the requirements of an ADA “disability” and

also a “serious medical condition” under the FMLA.

54. Plaintiff Brian Marks is a Kansas resident and former Spirit Wichita

plant employee. He was 53 years old when Spirit terminated his employment on

or about July 25, 2013, despite a record of solid (or better) job performance, after

27


more than 30 years of service with Spirit and Boeing. As of July 1, 2013, Mr.

Marks had Spirit self-insured employee health insurance. He had significant,

costly and/or potentially costly medical conditions in the period leading up to his

termination by Spirit (including a brain aneurysm resulting in a stroke in August

2012), and also later, including when Mr. Marks applied for several open

positions with Spirit, for which he was qualified, but was not rehired. He also

took FMLA leave in 2012 to care for one or more of his medical conditions while

at Spirit. One or more of Mr. Marks’ conditions, which were known to Spirit,

satisfied the requirements of an ADA “disability” and also a “serious medical

condition” under the FMLA.

55. Plaintiff Russell Ballard is a Kansas resident and former Spirit



performance, after approximately 8 years of service at Spirit and Boeing. As of

July 1, 2013, Mr. Ballard and his wife both had Spirit self-insured employee

health insurance. Mr. and Ms. Ballard both had significant, costly and/or

potentially costly medical conditions in the period leading up to Mr. Ballard’s

termination by Spirit and thereafter (including high blood sugar – him; and

gastrointestinal problems requiring two major surgeries, as well as depression

and anxiety – her). One or more of Mr. and Ms. Ballard’s conditions, which were

known to Spirit, constituted ADA “disabilit[ies].”

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56. Plaintiff Gregory Bucchin is a Kansas resident and former Spirit

Wichita plant employee. He was 57 years old on or about July 25, 2013 when

Spirit terminated his employment, despite a record of solid (or better) job

performance, after more than 5 years of service. As of July 1, 2013, Mr. Bucchin

had Spirit self-insured employee health insurance. He had several significant,

costly and/or potentially costly medical conditions in the period leading up to his

termination by Spirit (including hearing loss, partial loss of his right hand, and

symptoms of a heart attack), and also later, including when he applied for

numerous open positions with Spirit, for which he is qualified, but was not

rehired. One or more of Mr. Bucchin’s conditions, which were known to Spirit,

constituted an ADA “disability.”

57. Plaintiff Bruce Ensor was a Kansas resident through the spring of

2014. He was 55 years old when Spirit terminated his employment on or about

July 25, 2013, despite a record of solid (or better) job performance, after over 12

years at Spirit and Boeing. As of July 1, 2013, Mr. Ensor and his wife had Spirit

self-insured employee health insurance, and both also had significant, costly

and/or potentially costly medical conditions (including diabetes – him; and

chronic neuropathy of the legs and feet – her) in the period leading up to his

termination by Spirit. Mr. and Mrs. Ensor still had such conditions later,

including in January 2015, when Mr. Ensor learned that Spirit was hiring for his

former position. He applied but was not rehired. One or more of Mr. and Mrs.

29


Ensor’s conditions, which were known to Spirit, satisfied the requirements of

ADA “disabilit[ies].”

58. Plaintiff Forrest Faris is a Kansas resident and former Spirit Wichita



more than 21 years of service at Spirit and Boeing. As of July 1, 2013, Mr. Faris

and his wife had Spirit self-insured employee health insurance. They both had

significant, costly and/or potentially costly medical conditions (including heart

disease – him; and colon dysfunction, requiring two major surgeries – her) in the

period leading up to Mr. Faris’ termination by Spirit, and also later, including

when Mr. Faris applied for several open positions with Spirit for which he was

qualified, but was not rehired. One or more of Mr. and Mrs. Faris’ conditions,

which were known to Spirit, satisfied the requirements of an ADA “disability.”

59. Plaintiff Cheryl Renee Gardner is a Kansas resident and former Spirit



performance, after over 32 years of service with Spirit and Boeing. As of July 1,

2013, Ms. Gardner had Spirit self-insured employee health insurance. She had

significant, costly and/or potentially costly medical conditions (including liver

disease, disc surgery and arthritis, requiring a knee replacement) in the period

leading up to her termination by Spirit, and also later, including when Ms.

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Gardner applied for an open position with Spirit for which she was qualified, but

was not rehired. One or more of Mrs. Gardner’s conditions, which were known to

Spirit, constituted an ADA “disability.”

60. Plaintiff Clark T. (“Tim”) Harbaugh is a Kansas resident and former

Spirit Wichita plant employee. He was 65 years old when Spirit terminated his


performance, after over 24 years of service at Spirit and Boeing. As of July 1,

2013, Mr. Harbaugh had Spirit self-insured employee health insurance. Mr.

Harbaugh had significant, costly and/or potentially costly medical conditions

(including “pre-skin cancer” and “pre-hypertension”) in the period leading up to

his termination by Spirit, and also later, including when Mr. Harbaugh applied

for a number of open positions with Spirit for which he was qualified, but was not

rehired. One or more of Mr. Harbaugh’s conditions, which were known to Spirit,

constituted an ADA “disability.”

61. Plaintiff Craig Hoobler is a Kansas resident and former Spirit



performance, after more than 34 years of service at Spirit and Boeing. As of July

1, 2013, Mr. Hoobler had Spirit self-insured employee health insurance. Mr.

Hoobler had significant, costly and/or potentially costly medical conditions

(including a spinal dislocation, carpal tunnel syndrome and hernia surgery), in

31


the period leading up to his termination by Spirit, and also later, including when

Mr. Hoobler applied for multiple open positions with Spirit, but was not rehired.

One or more of Mr. Hoobler’s conditions, which were known to Spirit, satisfied

the requirements of an ADA “disability.”

62. Plaintiff Brian Scott Jackson is a Kansas resident and former Spirit



performance, after approximately 10 years of service with Spirit and Boeing. As

of July 1, 2013, Mr. Jackson and his family had Spirit self-insured employee

health insurance. Mr. Jackson and his family, including his daughter, had

significant, costly and/or potentially costly medical conditions (including asthma

as well as a chronic back ailment and a knee injury, both requiring surgery – him;

and “brittle bone disease” and an inability to produce growth hormone – his

daughter), in the period leading up to Mr. Jackson’s termination by Spirit, and

also later, including when Mr. Jackson applied for many open positions with

Spirit for which he was qualified, but was not rehired. Mr. Jackson also took

FMLA leave in 2012 and annually for several years prior, to care for his own and

his daughter’s serious medical conditions. One or more of Mr. Jackson’s and his

daughter’s conditions, which were known to Spirit, constituted “disabilit[ies]”

under the ADA and “serious medical conditions” under the FMLA. Mr. Jackson

32


also requested reasonable accommodations under the ADA in the period prior to

his termination by Spirit on or about July 25, 2013.

63. Plaintiff William Koch is a Kansas resident and former Spirit Wichita



more than 33 years of service with Spirit and Boeing. As of July 1, 2013, Mr. Koch

and his wife had Spirit self-insured employee health insurance. They both also

had significant, costly and/or potentially costly medical conditions (prostate and

chronic back issues – him, and scoliosis and related complications, requiring

major surgery – her) including in the period leading up to Mr. Koch’s termination

by Spirit. Mr. Koch also took FMLA leave during his employment with Spirit to

care for one or more of these conditions. One or more of Mr. and Mrs. Koch’s

conditions, which were known to Spirit, satisfied the requirements of ADA

“disabilit[ies]” and “serious medical condition[s]” under the FMLA. Spirit’s

discriminatory hiring policies in regard to employees terminated in July 2013

discouraged and deterred Mr. Koch from applying for open positions with Spirit

for which he was qualified following his termination.

64. Plaintiff Fredrick Longan is a Kansas resident and former Spirit



performance, after more than 32 years of service with Spirit and Boeing. As of

33


July 1, 2013, Mr. Longan had Spirit self-insured employee health insurance. He

had several significant, costly and/or potentially costly medical conditions

(including prostate cancer, diabetes and pancreatitis as well as five surgeries) in

the period leading up to his termination by Spirit, and also later, including when

Mr. Longan applied for multiple open positions with Spirit for which he was

qualified, but was not rehired. Mr. Longan also took FMLA leave to care for his

conditions while employed by Spirit. One or more of Mr. Longan’s conditions,

which were known to Spirit, satisfied the requirements of an ADA “disability” and

also that of a “serious medical condition” under the FMLA.

65. Plaintiff David B. Miller is a Kansas resident and former Spirit



performance, after more than 25 years with Spirit and Boeing. As of July 1, 2013,

Mr. Miller and his wife had Spirit self-insured employee health insurance. Both

had significant, costly and/or potentially costly medical conditions (including

diabetes and cardiovascular disease – him; and thyroid cancer – her) in the

period leading up to Mr. Miller’s termination, and also later, including when Mr.

Miller applied for multiple open positions with Spirit, for which he was qualified

but was not rehired. One or more of Mr. Miller’s and his wife’s conditions, known

to Spirit, constituted ADA “disabilit[ies].”

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66. Plaintiff Kenneth L. Poole, Jr. is a Kansas resident and former Spirit




July 1, 2013, Mr. Poole and his family had Spirit self-insured employee health

insurance. Mr. Poole, his wife and his son each had significant, costly and/or

potentially costly medical conditions (including thyroid cancer – him; diabetes

and a heart murmur – his wife; and asthma requiring hospitalization – his son),

including in the period leading up to his termination by Spirit. One or more of the

conditions experienced by Mr. Poole, Mrs. Poole and their son, which were known

to Spirit, each satisfied the requirements of an ADA “disability.” Spirit’s

discriminatory hiring policies in regard to employees terminated in July 2013

discouraged and deterred Mr. Poole from applying for open positions with Spirit

for which he was qualified following his termination.

67. Plaintiff Bahram Rahbar is a current Kansas resident and a former

Spirit Wichita plant employee. He resided in Kansas in 2013 at the time of this

termination by Spirit. He was 65 years old when Spirit terminated his



July 1, 2013, Mr. Rahbar and his family had Spirit self-insured employee health

insurance. He and his son had significant, costly and/or potentially costly

35


medical conditions (including hypertension and a broken back – him; and a torn

retina requiring surgery – his son), during the period leading up to Mr. Rahbar’s

termination by Spirit, and also later, including when Mr. Rahbar applied for open

positions with Spirit, but was not rehired. Mr. Rahbar also took FMLA leave to

care for one or more of his and/or his son’s medical conditions during his

employment with Spirit. One or more of Mr. Rahbar’s and his son’s conditions,

which were known to Spirit, constituted ADA “disabilit[ies]” and “serious medical

condition[s]” under the FMLA.

68. Plaintiff Russell Sprague is a Kansas resident and former Spirit



performance, after more than 6 years of service with Spirit. As of July 1, 2013,

Mr. Sprague and his wife had Spirit self-insured employee health insurance. Both

had significant, costly and/or potentially costly medical conditions (including

thyroid cancer and hypertension – him; and diabetes – her), in the period leading

up to Mr. Sprague’s termination by Spirit, and also later, including when Mr.

Sprague applied for an open position with Spirit virtually identical to the position

he had successfully performed for years. But despite his qualifications, he was

not rehired. One or more of Mr. Sprague’s and his wife’s conditions, which were

known to Spirit, satisfied the requirements of ADA “disabilit[ies].”

36


69. Plaintiff Craig Tolson is a Kansas resident and former Spirit Wichita

plant employee. He was 57 years old when Spirit terminated him on or about July

25, 2013, despite a record of solid (or better) job performance, after more than 35

years at Spirit and Boeing. As of July 1, 2013, Mr. Tolson had Spirit self-insured

employee health insurance. He had significant, costly and/or potentially costly

medical conditions (including diagnosed sleep apnea and suspected heart

disease) including in the period leading up to his termination and thereafter. One

or more of Mr. Tolson’s conditions, which were known to Spirit, constituted an

ADA “disability.” Spirit’s discriminatory hiring policies in regard to employees

terminated in July 2013 discouraged and deterred Mr. Tolson from applying for

open positions with Spirit for which he was qualified following his termination.

70. Plaintiff Robert Troilo is a Kansas resident and former Spirit Wichita



approximately 38 years of service at Spirit and its predecessor, Boeing. As of July

1, 2013, Mr. Troilo had Spirit self-insured employee health insurance. He had

several significant, costly and/or potentially costly medical conditions (including

degenerative arthritis, depression, low testosterone requiring hormone

replacement therapy, and damaged discs in his neck) in the period leading up to

his termination by Spirit, and also later, including when he applied for one or

more open positions with Spirit for which he was qualified, but was not rehired.

37


One or more of Mr. Troilo’s conditions, which were known to Spirit, satisfied the

requirements of an ADA “disability.”

71. Plaintiff Curtis J. Vines is a Kansas resident and former Spirit

Wichita plant employee. He was 56 years old when Spirit terminated him on or

about July 25, 2013, despite a record of solid (or better) job performance, after

more than 33 years of service with Spirit and Boeing. As of July 1, 2013, Mr.

Vines had Spirit self-insured employee health insurance. He had significant,

costly and/or potentially costly medical conditions (including an obstructed

bowel, as well as gout and hypertension) in the period leading up to his

termination by Spirit, as well as later, including when Mr. Vines learned of a job

opening at Spirit for which he was qualified. However, Spirit did not announce

the opening and thus, Mr. Vines was unable to apply. Mr. Vines understands and

believes that Spirit filled the position with another, significantly younger, less

experienced, less qualified former Spirit employee, who neither had significant

medical conditions, nor had anyone in their family covered by Spirit health

insurance with such conditions, nor had a disability, nor was associated with

someone with a disability. One or more of Mr. Vines’ conditions, which were

known to Spirit, constituted an ADA “disability.”

72. The named Plaintiffs consent to serve as Representative Plaintiffs, on

behalf of themselves and others similarly situated, with respect to their ADEA

collective action claims challenging their termination by Spirit, Spirit’s failure and

38


refusal to rehire them, and if applicable to them, the validity of their waiver of

ADEA claims. 29 U.S.C. §§ 216 (b), 626(b).

B. Defendants

73. Defendant Spirit AeroSystems Holdings, Inc. (“SAHI”) is a Delaware

corporation licensed to and doing business in the State of Kansas. At all relevant

times, SAHI has employed more than 10,000 employees. SAHI is an “employer”

within the meaning of the ADEA, the ADA, and the FMLA. SAHI can be served

with process upon its registered agent, Corporation Service Company, 2900 SW

Wanamaker Drive, Suite 204, Topeka, KS 66614.

74. Defendant Spirit AeroSystems, Inc. (“SAI”) is a Delaware corporation

licensed to and doing business in the State of Kansas, and is the subsidiary of

Defendant SAHI. SAHI holds more than 50% ownership of SAI. At all relevant

times, SAI has employed more than 10,000 employees. SAI is an "employer"

within the meaning of the ADEA, the ADA, and the FMLA. SAI can be served with

process upon its registered agent, Corporation Service Company, 2900 SW

Wanamaker Drive, Suite 204, Topeka, KS 66614.

V. FACTUAL ALLEGATIONS

A. Collective Action Allegations

75. The Named Plaintiffs assert three collective action claims via 29

U.S.C. § 626(b):

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a. a Termination Claim on behalf of themselves and other former

Wichita-based salaried Spirit employees who were age 40 or older

and SPEEA-represented employees on July 25, 2013, the day on or

about which Spirit notified them that it was terminating their

employment in a group reduction-in-force (RIF), and on or about

which Spirit thereby terminated its responsibility to pay their

claims under its self-insured employee health insurance plan (i.e.,

the “Plaintiffs”). Spirit violated the ADEA by:

i. considering the older age of the Plaintiffs as a factor that

made a difference in selecting them for inclusion in the July

2013 RIF, including by assuming a correlation between their

age and their significant medical conditions and/or those of

one or more family members, which Spirit believed would

likely incur high costs that the Company would be solely

responsible for paying, due to the company becoming self-

insured on July 1, 2013; and/or by

ii. considering the significant, costly and/or potentially

costly medical conditions of the Plaintiffs and/or of their

family members, as well as uncharacteristically low

evaluation ratings of the Plaintiffs, based on arbitrary

changes in Company evaluation procedures, as non-age

40


factors that made a difference in their inclusion in the RIF,

thereby causing the RIF to have a significant adverse

disparate impact on Spirit employees age 40 or older within

the pool of employees considered for the RIF, without a

reasonable basis therefor;

b. an OWBPA Claim on behalf of those Plaintiffs, including 19

Named Plaintiffs, from whom Spirit secured releases of ADEA (and

other) claims, in return for monetary inducement received by such

employees and referenced in a severance document signed by such

employees on or about July 25, 2013, which releases were not

knowing and voluntary, but rather, were accompanied by

incomplete, inaccurate, misleading and otherwise defective

OWBPA-mandated disclosures;

c. a Failure and Refusal to Hire Claim on behalf of those

Plaintiffs, including 23 Named Plaintiffs, who after their

termination by Spirit on or about July 25, 2013, applied to be

rehired by Spirit to open positions with the Company for which

they were qualified, but whom Spirit failed and refused to rehire,

and/or whom Spirit deterred from applying for such positions, due

to its policies, practices, actions and inactions violating the ADEA,

including:

41


i. considering the older age of Plaintiffs as a factor that made a

difference in Spirit refusing to rehire older workers

terminated in July 2013, by assuming a correlation between

their age and their significant, costly and/or potentially

costly medical conditions and/or those of one or more family

members, which Spirit believed would likely incur high costs

that the Company would be solely responsible for paying due

to the company becoming self-insured on July 1, 2013;

and/or

ii. considering the significant, costly and/or potentially costly

medical conditions of Plaintiffs and/or their family members,

as well as uncharacteristically low evaluation ratings of such

Plaintiffs, based on arbitrary changes in Company evaluation

procedures, as non-age factors that made a difference in the

Company refusing to rehire former employees terminated in

July 2013, thereby causing a significant adverse disparate

impact on Spirit employees age 40 or above within the pool

of employees considered for rehire, without a reasonable

basis therefor.

76. Based on information they have gathered thus far, the Named

Plaintiffs submit that numerous individuals were affected by Spirit’s misconduct

42


and thus, are or should be eligible to participate in asserting the collective action

claims stated above: Termination Claim, approximately 180 individuals;

OWBPA/Waiver Claim, approximately 160 individuals; Failure and Refusal to

Hire Claim, approximately 150 individuals.

77. A collective action is superior to other available methods for the fair

and efficient adjudication of the group claims set forth herein by the Named

Plaintiffs. The collective action mechanism provides for comprehensive and

consistent supervision and adjudication of numerous similar claims by a single

court. Its use will result in fewer delays and less expense to all parties and to this

Court. A collective action also would permit the pooling of resources to afford the

Plaintiffs an economically feasible alternative to individual litigation.

78. Individual prosecution of this litigation – by joinder of all those

adversely affected by Spirit’s alleged misconduct violating the ADEA – would be

impractical, unduly expensive, burdensome, and duplicative. It would

unnecessarily tax the resources of the court, and would deny the Plaintiffs any

realistic chance of vindicating their ADEA rights. The ADEA issues presented in

this case are most likely to be efficiently resolved in a single collective action.

B. General Factual Allegations

Overview: The July 2013 Terminations

79. On July 25, 2013, a Spirit press release announced that the Company

had notified “approximately 360 employees” in Kansas and Oklahoma that their

43


employment was terminated, allegedly as part of “workforce reductions.” At the

same time, Spirit also terminated employees in North Carolina. Most of these

cuts affected salaried personnel at Spirit’s Wichita facility. There, nearly 300

salaried engineers and other non-management employees with union

representation (by SPEEA) lost their jobs. Many of those terminated, especially

those age 40 or over, themselves had, and/or had family members who had,

significant, costly and/or potentially costly medical conditions.

80. One by one, Spirit officials called these employees into closed door

sessions, abruptly told them they were fired, and in short order escorted them off

the premises. Most of those terminated had dedicated many years, even decades,

to Spirit and its predecessor, Boeing. Most, including the Named Plaintiffs, had

records of solid or better performance, and were shocked by their terminations.

81. The reasons for their surprise included that since 2006, when Spirit

secured ownership of Boeing manufacturing operations in Wichita (and

elsewhere), the company had not conducted any major layoffs. Moreover, Spirit’s

stated need for “workforce reductions” rang hollow in light of a “hiring blitz” that

Spirit initiated shortly after July 2013, including openings for jobs for which the

descriptions indicated to the Named Plaintiffs and others similarly situated that

they were well-qualified. Yet in filling these jobs, Spirit only rehired younger

individuals – i.e., those under age 40 – from among those terminated in July

2013.

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Prelude to July 2013: Related Terminations in March and May 2013.

82. The July 2013 reduction-in-force was not the first time that year that

Spirit’s Wichita, Kansas workforce saw long-tenured, older employees walked out

the door.

83. In March 2013, Spirit abruptly discharged dozens of Wichita-based

workers, including many long-time Spirit and Boeing employees, in a cluster of

so-called “for cause” terminations.

84. Among those Spirit fired were lower level managers who balked at

directives from senior-level managers to fabricate performance “issues” for

subordinates who they (the lower level managers) believed did not deserve

negative evaluations.

85. In March 2013, Spirit also fired employees at least 40 years old

(some much older) who had accumulated lengthy service at Spirit and Boeing,

and who also had one or more significant, costly and/or potentially costly medical

conditions, and/or spouses or children who had the same.

86. On information and belief, the alleged bases of the “for cause”

terminations of many, if not all of these individuals, were contrived and

pretextual.

87. A few months later, in May 2013, Spirit constructively terminated at

least 20 (and possibly many more) employees – also Wichita-based SPEEA

45


members – through coercive “offers” of resignation or retirement “in lieu of

termination.”

88. Like the employees Spirit terminated in March 2013 and later in July

2013, those constructively terminated in May 2013 were overwhelmingly age 40

or older, and many had serious medical conditions themselves, and/or had

spouses or children with such conditions.

89. Spirit centrally planned and administered the March, May and July

2013 terminations, as well as its later decisions not to rehire employees

terminated in July 2013. Spirit’s senior management established uniform

processes, to be implemented in the same way across the organization, for

evaluating and rating employees, with ratings to be distributed so as to mirror a

predetermined distribution: i.e., so-called “forced ranking.” In particular, Spirit

executive leadership sought to achieve performance management ratings

according to a natural bell curve, so that at least 15% in any work group received

the lowest scores. Spirit’s executive leadership aimed to have retention ratings

with a 70%/20%/10% distribution, with at least 10% in any workgroup receiving

the lowest scores.

90. Spirit’s use of “forced ranking” in evaluating employees prior to the

July 2013 RIF required lowering the rating of many employees. Moreover, it

often required assigning ratings contrary to the views and experience of first-level

managers who worked directly with Spirit employees and knew their abilities

46


best. It often involved second-level or higher-level supervisors directing or

otherwise requiring lower-level managers to impose lower employee ratings than

the lower-level managers believed the performance and potential performance of

their employees warranted. On information and belief, Spirit management used

such uniform processes to select employees for the 2013 terminations.

91. On information and belief, Spirit’s senior management arranged to

conduct the 2013 terminations in waves, rather than all at once, so as to give the

appearance of separate termination events, rather than a single reduction-in-

force, so that the OWBPA-mandated disclosures did not demonstrate age

discrimination as strongly, and instead, obscured both the fact that older workers

were targeted and the size o the layoffs’ adverse impact on employees age 40 and

above. Although Spirit’s three 2013 RIFs were part of a single program of

reductions, Spirit provided no OWBPA disclosures to the employees included

March and May waves of terminations, nor disclosures regarding the March and

May terminations to the July 2013 terminees.

Spirit Decides to “Self-insure” Its Employee Health Plan

92. Another explanation for Spirit’s 2013 terminations emerged just

before the third set of related headcount reductions in late July. On July 1, 2013,

Spirit implemented dramatic alterations to its employee health insurance plan.

Unbeknownst to most Spirit employees, including the Named Plaintiffs, for many

months prior to July 2013, the Company had been transitioning its employee

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health insurance from a third party health insurance provider system to a fully

“self-funded” or “self-insured” plan.

93. A self-insured employee health insurance plan requires an employer

itself to pay employee health insurance claims – including for prescriptions,

medical appointments, hospital charges, surgical bills, etc. – made by its covered

employees and also any family members covered on the employee’s plan (to the

extent of each individual’s coverage, whether “primary” or “secondary”). By

contrast, employers with “third-party” insurance plans usually pay a fixed

monthly fee for each individual employee’s potential health insurance claims –

however high or low they may actually be.

94. Thus, a self-insured employer has a strong incentive to limit its

exposure to large employee health insurance care claims. An employer with

third-party health insurance, by comparison, has a much lesser incentive to do so.

95. In order to mitigate the financial risks posed by self-funded

employee health insurance plans, many self-insured employers take out so-called

“stop-loss” insurance (or “reinsurance”). Such policies typically require an

insurer, not the employer, to cover health insurance claims that exceed a certain

figure in a given year for a covered employee’s family overall, or for each covered

individual. Thus, with “stop-loss insurance,” a self-funded employer’s risk is less

in regard to employees (or their family members) with conditions requiring

expensive medical treatments and procedures. Yet Spirit took no such steps to

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mitigate the risks of going self-insured. Thus, as of July 1, 2013, Spirit became

fully liable for all expenses incurred by those on its self-insured employee health

plan.

Spirit’s Efforts to Track Employee Health Claims and Conditions

96. By the fall of 2012, Spirit had been closely tracking and analyzing

employee medical and demographic data – including age – for many years. The

data Spirit monitored included, inter alia, employee age, sex, medical

condition(s), and number and cost of all medical claims, including doctor visits,

hospitalizations (inpatient and outpatient) and prescription drug expenses. Spirit

obtained this data from various sources, including Mercer, its long-standing

health insurance consultant, and Aetna (formerly Coventry Health Care of

Kansas, Inc., and Preferred Health Systems, Inc.), its health plan administrator in

all relevant time periods.

97. Spirit’s health care consultants and administrators regularly

prepared data and analyses for Spirit on the demographics of its workforce,

including by age, and on trends in employee healthcare costs. This included

identifying specific categories of employee health conditions causing Spirit the

highest healthcare costs (which the analyses called, e.g., health “cost drivers”) and

the largest claim amounts in a given year attributable to single individuals (whom

the reports called, e.g., “high-cost claimants”). Spirit and its consultants shared

some of this data and analysis with representatives of SPEEA at quarterly

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meetings held pursuant to the union contract. At these meetings, the parties

discussed trends in healthcare costs and possible steps to control such costs.

Spirit representatives repeatedly expressed urgent concern about the volume and

rate of increase of the Company’s expenditures for employee health insurance.

Also discussed was the age profile of Spirit workers and links between the share of

older age workers and the incidence of higher cost employee medical conditions.

These links included conditions Spirit considered principal “cost drivers,” such as

diabetes, back ailments, hypertension, heart disease and cancers, all of which

disproportionately affect persons age 40 and above.

98. At these meetings, Spirit provided SPEEA employee healthcare data

without identifying employee names. Yet this data focused on the incidence of

certain medical conditions among Spirit employees, like diabetes and

hypertension, correlated with high future health claims (so-called “trigger

diagnoses”), and also specified the most expensive conditions (the “Top 25 Cost

Drivers”), causing the highest dollar volume employee health claims. Spirit

tracked employee claims for these diagnoses and other conditions to the penny.

And Spirit representatives repeatedly pressed SPEEA for suggestions how to

reduce such costs and claims.

99. Spirit’s healthcare consultants and administrators have had access to

extensive employee healthcare claims and cost data not shared with SPEEA

representatives, including data on costs attributable to specific individual

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employees – costs after July 1, 2013 that were Spirit’s exclusive responsibility to

pay. To the extent Spirit has secured access to individualized employee

healthcare cost and/or other data in the hands of its healthcare consultants and

administrators, it was (and is) able to identify specific employees incurring the

largest self-insured employee health insurance claims.

100. On information and belief, even if Spirit’s healthcare consultants and

administrators have not shared individualized health care claims and cost data

with the Company, Spirit’s access to healthcare data – especially in the period

leading up to the switch to self-insurance – included considerable information

allowing the Company to identify and target individuals, with what the Company

considered high healthcare costs, by other means. These means included, for

example: supervisors being told and otherwise learning of healthcare challenges

experienced by subordinates; and supervisors reviewing requests for employee

medical leave; as well as, on information and belief, consultants/administrators

sharing individualized health employee data as part of the process of Spirit

switching to self-insurance, and employee participation in the Healthy Spirit

employee “wellness” program.

Spirit Takes Steps Related to Its Self-Funding to Address Employee Health Costs.

101. By the fall of 2012, Spirit had developed a detailed, month-by-month

plan for the 2013 reduction-in-force. Spirit identified numerous specific actions

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to be taken by a variety of senior and junior personnel to implement coordinated

reductions in its facilities in Wichita, Oklahoma and North Carolina.

102. On information and belief, Spirit developed plans for the 2013

reductions-in-force plans in conjunction with plans for a transition to a self-

funded employee health insurance program, and accordingly, coordinated its

planning of these projects.

103. On information and belief, sometime in 2012 (and possibly earlier),

as Spirit decided to switch to a self-insured plan for employee health insurance,

senior level management began to design steps they anticipated would

significantly alter the demographics of their workforce so that it would be

younger, based on assumptions that such a workforce would be healthier, give

rise to lower health care expenses and cost the company less. Spirit projected

that it could save millions of dollars by terminating older workers.

104. Further, on information and belief, during the same period, and in

connection with its work on these projects, Spirit gained access to additional and

more detailed employee health information, including information allowing

employees and their family members to be more easily identified.

105. Senior management staff and HR employees spent weeks behind

closed doors, in secrecy, leading up to the March, May and July 2013 layoffs. On

information and belief, their activities included identifying employees to be

included in these reductions-in-force.

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106. At some point (and likely at multiple points) in planning the 2013

layoffs, Spirit prepared projections of who would be affected by the proposed

layoffs, including “EEO impact analys[e]s” to examine if there would be

statistically significant impacts on protected classes of employees, such as those

ages 40 and older. On information and belief, in the course of these analyses,

Spirit management and HR learned that its proposed layoffs would result in

significant disproportionate, adverse impact on older employees.

Spirit Adopts New Evaluation Practices to Realize Its Goals for the July 2013 RIF

107. In designing and carrying out a reduction-in-force at the Wichita

plant, Spirit’s senior management was constrained by provisions of its Collective

Bargaining Agreement (“CBA”) with SPEEA governing a reduction-in-force and

employee “retention” rating exercises. These constraints posed especially serious

barriers to Spirit terminating several hundred employees, many of whom, like the

Named Plaintiffs, were long-tenured employees and high level performers with no

record of significant performance problems.

108. Pursuant to the CBA, if Spirit decided to make a reduction-in-force,

the Company was generally required to retain employees who had the best

performance ratings. Spirit had to provide specific justifications to SPEEA for

making exceptions to such requirements. Lowering ratings of employees Spirit

wanted to terminate was one way for the Company to avoid having to provide

such explanations to SPEEA for firing employees with good work records.

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109. Under the CBA, the performance of Spirit’s SPEEA-represented

employees is measured both by annual performance reviews (the “PM” or

“performance management” process) as well as by a “retention rating” process

that occurs approximately every 18 months.

Spirit’s Discriminatory Revisions to Its PM Process

110. In late 2012 and early 2013, Spirit implemented an “enhanced and

tightly controlled PM execution process” (also referred to by Spirit as its PM

“Calibration” exercise).

111. Most of the Named Plaintiffs received their 2012 performance

evaluations in or about April 2013.

112. Spirit’s new PM approach had the purpose and effect of driving down

the performance ratings of many high-performing, experienced, older employees

with significant, costly and/or potentially costly medical conditions and

disabilities, who had no material performance issues. They received such lower

ratings in time for them to be selected for termination in the July 2013 RIF, if not

before, in time for them to be included in forced resignations Spirit carried out in

March and May of 2013.

113. Spirit’s management, in carrying out the new performance

evaluation process, lowered the PM ratings of about 600 SPEEA-represented

Wichita-based employees for 2012. A disproportionate share of these employees

were age 40 or over. And a disproportionate share of those receiving low PM

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ratings who Spirit terminated in July 2013 – including most of the Named

Plaintiffs – were age 40 or over.

114. Spirit’s PM ratings for 2011 and 2012 (and prior years as well)

included two high ratings – “Exceptional” and “Exceeds Expectations,” one

midrange rating – “Meets Expectations,” and two low ratings – “Meets Some

Expectations” and “Unacceptable.”

115. In 2013 Spirit informed more than 400 Wichita-based, union-

represented Spirit workers age 40 or over with a high 2011 PM rating – either

“Exceptional” or “Exceeds” – that they would be receiving a lower, midrange PM

rating of “Meets” for 2012. This downgrading affected more than half of the over

800 older, salaried, unionized Wichita Spirit employees who the Company

assigned high PM ratings in 2011. By contrast, Spirit similarly reduced PM

ratings of a much lower share of comparable workers under age 40 – less than a

third. Just before the 2013 RIF, Spirit also downgraded twice as large a share of

its older Wichita unionized workers with a prior high or midrange PM rating to

one of the two lowest PM rating levels – “Meets Some” or “Unacceptable”: more

than 7.5% of the older group versus just above 3.5% of the younger group. In

both instances, the differences in results for employees age 40 and over and for

those under age 40 are statistically significant and thus, unlikely to have occurred

by chance. The Company admits that in 2012 “many Spirit employees received

lower ratings than they had enjoyed in the past,” but argues the outcomes of its

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new approach reflect “legitimate, nondiscriminatory business reasons,” such as

ending “grade inflation” and a desire to “more effectively manage poor

performance.” But Spirit fails to explain how its supposedly innocent methods

caused such grossly unequal results by age and the firing of so many older

workers.

116. In July 2013, Spirit terminated more than 100 older employees with

a “Meets Some” or an “Unacceptable” PM rating. This represented more than

50% of all Spirit employees assigned such ratings for 2012. By contrast, Spirit

terminated fewer than 10 employees under age 40 with a “Meets Some” or an

“Unacceptable” PM rating, which represented only about one-quarter of the total

in that category – or approximately one-half the proportion of comparably-rated

older employees terminated. This far higher rate of termination of older

employees is statistically significant and thus likely did not occur by chance.

117. On information and belief, Spirit Vice President of Human Resources

(“HR”) Suzanne Scott, and Director of Training and Organizational Development

Cassie Caster were responsible for developing Spirit’s “PM execution process” and

a plan for its implementation. They presented the process and plan for approval

by Spirit’s management, including Samantha Marnick, Senior Vice President and

Chief Administrative Officer, and Justin Welner, Vice President of Human

Resources, Environment, Health & Safety, and Building Maintenance.

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118. Throughout implementation, the process and plan were “tightly”

managed and coordinated by Spirit senior HR executives, including Scott and

Caster. Spirit went to great lengths to restrict access to data regarding

implementation, including prohibiting participating managers from retaining,

copying or e-mailing: notes of meetings in which employees were assigned

performance ratings or sorted for termination; employee lists and other

documents used in such meetings; and even electronic copies of employee

spreadsheets and other PM documents. Spirit had HR staff gather documents

from participants at the end of meetings, and established a “designated location”

for all spreadsheets documenting the results of the PM rating process for

individual employees.

119. Spirit’s senior management arranged for lower level managers to be

trained on how to write up employees for performance issues, using examples of

recent behavior. Attendance at these trainings was mandatory for all managers.

Spirit held make-up sessions to ensure that all managers received training in the

new execution process.

120. In general, upper level Spirit managers required lower level

managers to draft employees’ annual performance reviews and ratings for 2012

and submit them to HR for review. In the past, HR had accepted and processed

lower level managers’ ratings of their employees. For the first time ever with the

2012 performance evaluations, HR reviewed the evaluations and assigned ratings,

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and returned them to lower level managers with instructions on how to revise or

re-rate specific employees.

121. On information and belief, lower level managers also were forced to

rely on recommendations of senior managers regarding which employees should

be written-up and whose performance evaluations should be downgraded, and

why.

122. Lower level managers who refused to go along with the plan were

swiftly dealt with. In some cases, Spirit re-assigned them to oversee different

groups of employees about whom they knew very little. The Company

terminated other such lower level managers in March 2013, allegedly “for cause.”

In such instances, Spirit brought in new lower level managers to implement the

directives of senior management with respect to targeted employees. Such

managers also often knew very little about the employees they were assigned to

review. Limited knowledge of subordinates made lower level mangers especially

susceptible to influence from above regarding the ratings they gave.

123. Still other lower level managers who initially refused to carry out

directives to lower performance ratings for targeted employees ultimately decided

to go along with such plans when it became clear that if they did not, it would cost

them their jobs.

124. Senior Spirit managers also trained lower level managers how to

prepare a performance improvement plan (i.e., a “PIP” or “PCP” for “performance

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coaching plan”) for employees with lowered performance evaluations and/or

performance ratings. On information and belief, Spirit senior management

personnel imposed PIPs upon employees they believed would need a PIP in their

file to facilitate and justify their later termination. Senior management personnel

fired some older employees who successfully completed the terms of their PIPs,

and in other instances, fired older employees before giving them an opportunity

to complete their PIP.

125. Most of the Named Plaintiffs were shocked by the results of the new

PM process. Their managers had given them positive feedback during 2012, and

historically most had earned overall ratings of “meets” or “exceeds” expectations,

but suddenly they received evaluations rating them in lower performance

categories, such as “meets some expectations.”

126. Most reasons recorded for the lowered performance evaluations of

the Named Plaintiffs and others similarly situated were pretextual. Some

individuals received nonsensical explanations for dramatic downgrades, and

others no reasons at all. Still others learned from a first-level manager that he or

she had been forced to assign low ratings, despite disagreeing with them and

believing a subordinate was performing well. Other Named Plaintiffs seem to

have been downgraded due to the impact of their medical conditions on their

work record.

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127. For instance, Plaintiff Jilun Sha, a Product Engineer in the Chief

Scientist’s Office for approximately six years, received an overall PM rating of

“exceeds expectations” for 2010 and 2011 (as well an “A” retention rating in the

two retention exercises prior to July 2013). Without warning or explanation, he

learned in April 2013 that he had received a much lower PM rating of “meets

some expectations” for 2012. When Mr. Sha inquired with his first-level

supervisor about his lowered rating, the manager ignored his questions and

stopped giving him work. On or about July 1, 2013, Mr. Sha also received a much

lower retention rating – a designated “C” – again without warning or explanation.

128. Another example of a Plaintiff who received dramatically lower

performance ratings without warning and without a coherent explanation was

Randy Williams, a Production Operation Specialist at the Wichita plant who had

an impeccable performance record during his nearly 30 years of service to Spirit

and its predecessor, Boeing. Mr. Williams had overall PM ratings of “exceeds

expectations” for 2010 and 2011 and had received an “A” retention rating in the

two retention exercises prior to the July 2013 terminations. On July 1, 2013,

during his annual review for 2012, Mr. Williams learned from his first level

supervisor that his overall PM rating had been downgraded to “meets

expectations.” The “explanation” Mr. Williams received for his lowered PM rating

was vague and unsupported by any specifics – that he needed to improve his

business “acumen.” That same day Mr. Williams also learned – again without

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receiving any coherent explanation – that he had been assigned a designated “C”

retention rating, and that Spirit was putting him on a “performance improvement

plan.” Mr. Williams did not have a chance to complete his PIP before his

termination on July 23, 2013.

The Scope of Low Spirit Retention Ratings and “Designations” Was Unprecedented

129. In mid-2013, shortly before the July 2013 RIF, and at the same time

as Spirit went “self-insured,” Spirit also implemented major changes in its

“retention rating” process, to the detriment of the Named Plaintiffs and other

similarly situated older, long-tenured, high-performing SPEEA-represented

employees.

130. During a “retention exercise,” Spirit rates employees on

“performance” and on subjective criteria commonly associated with negative age-

based stereotypes – i.e., “versatility” and “criticality.” Employees receive

retention ratings on a scale from “A” to “C”, with “A” being the highest rating.

Employees who receive a "C" retention rating are at risk of being laid off if a RIF

occurs while that rating is in effect.

131. However, the CBA provides for an automatic service “bump” for

employees – like fifteen of the Named Plaintiffs – with 20 or more years of

service. Thus, long-tenured employees who receive a "C" retention rating are

automatically "bumped" up to a "B" rating. Likewise, those who receive a "B"

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rating are "bumped" up to an "A," unless the employee is "designated" upon

receipt of the initial rating.

132. This feature of the retention exercise process applies to many

SPEEA-represented Spirit employees because when Spirit purchased the Wichita

facility from Boeing in 2005, Spirit allowed former Boeing employees re-hired as

“Day One” Spirit employees to count their years of service with Boeing toward

their years of service with Spirit under the CBA.

133. However, when an employee is "designated" – as indicated by a

marking in the “designation” box on Spirit’s retention rating form – the

automatic "bump" up for employees with 20 or more years of service does not

apply. Further, when an employee is "designated," he or she is ineligible for

“recall” if his or her position is re-opened following his or her layoff.

134. Historically, Spirit had “designated” only a few chronically poor

performers. Between 2005 and 2013, Spirit designated fewer than five persons

given a “C” retention rating.

135. For this reason, many of the Named Plaintiffs reasonably expected

that they would be entitled to a years-of-service bump up in the event that they

were to receive a retention rating lower than an “A” during a retention exercise.

The only way Spirit could circumvent such an automatic service adjustment

without violating the terms of the CBA was to dramatically alter its consistent

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past practice by “designating” more employees with retention ratings below an

“A.”

136. That is precisely what Spirit senior management decided to do in the

run-up to the July 2013 RIF. In early 2013, Spirit designated about three

hundred employees with “C” ratings.

137. In its 2013 retention exercise, Spirit downgraded many more

Wichita-based, SPEEA-represented employees age 40 and above than those

under age 40. And the Company assigned older workers the lowest possible “C”

retention rating -- after giving them a higher grade in the prior exercise – at a rate

far in excess of the rate applicable to younger workers. Spirit downgraded more

than 160 older Wichita Spirit workers to a “C” in 2013; however, it did the same

to fewer than 20 such employees under age 40. This numerical difference

reflected dramatically disparate results by age in terms of the proportion –

roughly double – of older “C”-rated employees downgraded in 2013:

approximately 8.4% of “C”-rated employees age 40 or above, and approximately

4.2% of those under age 40. Further, Spirit terminated in the July 2013 RIF more

than three-quarters of those “C”-rated and age 40 and above, but less than 60% of

those under age 40. These stark differences in Spirit’s 2013 retention ratings by

age are both statistically significant and unlikely to have occurred by chance.

138. Before employees could be designated, however, they needed to have

some sort of documented performance problem. Yet most of those terminated in

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July 2013, at least prior to their last evaluations, were high-performing employees

(or at least solid or better performers) without a record of performance issues that

would justify a “designated C” retention rating, thereby permitting Spirit to

terminate them without violating the CBA. Nevertheless, Spirit assigned many

such employees, including all of the Named Plaintiffs, a “designated C” rating in

the retention exercise the Company conducted on July 1, 2013.

139. The Spirit employees receiving “designated C” retention ratings in

2013 included many employees, among them numerous Plaintiffs, who were told

upon receiving their annual review that they were doing good work.

140. Spirit employees receiving “designated C” retention ratings in 2013

also included individuals who had successfully completed a PIP. For example,

Plaintiff William Scott Denny got a “designated C” even though he successfully

completed a four-week PIP in May or June 2013.

141. Plaintiff Debra Hatcher’s annual review dated April 18, 2013,

completed by her direct supervisor Clayton Walton, stated that Hatcher’s

performance since joining the Logistics and Stores and Process Materials

group has met every expectation set by the Company and Leadership. You

consistently provided necessary information . . . . You work the quality

issues for the entire group diligently, investigating every single issue and

reporting back when team performance is impacted. Due to your diligent

efforts, our overall quality performance has improved. This . . . is a direct

reflection on your personal performance as has been observed in the

reports and daily information provided.

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Yet Hatcher also received a “designated C” in the July 1, 2013 retention rating

exercise.

142. Multiple lower level managers expressed frustration to their

subordinates in connection with the July 1, 2013 retention exercise, explaining

that they had no control over the ratings assigned, and had been forced to issue

unduly low ratings to particular employees.

143. Some lower level managers went so far as to advocate for employees

under their supervision with their own supervisors when they believed their

subordinates were being unfairly targeted and assigned inappropriately low

retention ratings. Some such managers were terminated in or before July 2013.

Others ceased objecting after threats of termination from their own supervisors.

144. Upon information and belief, Spirit senior management changed

none of the PM or retention ratings challenged by lower level managers on behalf

of their subordinates.

Spirit’s Fall 2013 RIF Demonstrated the Uniqueness of its RIF Earlier that Year

145. In September 2013, Spirit further demonstrated the uniqueness of

the RIF process it implemented over the prior year that culminated in the July

2013 RIF, when it conducted another RIF without key features of the July 2013

RIF.

146. In particular, in the September 2013 RIF, Spirit did not assign a large

number of employees a “designated C” retention rating, and cause them to be

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terminated thereby, and thus, Spirit also did not deny large numbers of such

employees their “recall rights.” Rather, all SPEEA-represented employees laid off

in September 2013 – compared with none of those terminated in July 2013 –

retained recall rights. Based on such rights, approximately 50% of the 150

individuals laid off in September 2013 returned to work at Spirit. In addition,

prior to implementing the September 2013 RIF, unlike in July 2013, Spirit offered

employees the option of taking a voluntary separation package – thereby reducing

the need for involuntary terminations – and also extended to them an

opportunity to secure Spirit retiree medical benefits.

147. Since the years 2012-13 very few – approximately 15 – Spirit

employees with “C”- level retention ratings have been “designated” and thereby

denied “recall rights”.

Spirit’s Waiver of Claims in the July 2013 Terminees’ Severance Agreement

148. Spirit attempted to secure waivers of claims from employees fired on

or about July 25, 2013 by avoiding its disclosure obligations.

149. Spirit’s disclosures did not include all individuals terminated and

retained on July 25, 2013 as part of the same termination program, as Spirit did

not report those affected facilities other than Wichita, including, but not

necessarily limited to, employees at its Tulsa, Oklahoma and Kinston, North

Carolina locations.

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150. Spirit’s disclosures did not include individuals terminated in Spirit’s

Wichita facility as a part of the same termination program in March and May of

2013.

151. Spirit also did not identify the criteria it used to select individuals for

termination.

152. The list of terminated and retained individuals Spirit did include in

its July 2013 disclosures was inaccurate and incomplete.

153. Virtually all of the SPEEA-represented employees terminated in

Wichita in July 2013 signed waiver and release documents based on information

Spirit provided that was incomplete and inaccurate in various ways including

those noted above.

Spirit Failed and Refused to Rehire Qualified Persons It Fired in July 2013

154. Shortly after the July 2013 layoffs, Spirit began recruiting and hiring,

including for positions for which the descriptions indicated to the Named

Plaintiffs that they were well-qualified. At its September 2013 Job Fair, Spirit

treated applicants who had been terminated in July 2013 differently from others

seeking open positions. Specifically, Spirit personnel told the Named Plaintiffs

and others terminated in July 2013 not to wait in line for interviews and

consideration by Spirit HR personnel and other Spirit personnel with hiring

authority for specific positions, but rather, to wait in a separate line, to drop off

their resume and to wait to hear back from the Company. Plaintiffs who attended

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the Job Fair saw descriptions of open positions open for which they were

qualified, but they were not allowed to compete for them on equal terms.

155. The Named Plaintiffs who attended the September 2013 Spirit Job

Fair, who submitted job applications including their resumes, and who asked the

Company to contact them about open positions for which they were qualified,

heard nothing back from the Company. On information and belief, Spirit ignored

their applications and resumes and/or caused them to be ignored, rejected and/or

screened out. Others similarly situated had the same experience. Based on this

and other similar experiences, the Named Plaintiffs who attended the September

2013 Job Fair and others similarly situated concluded that Spirit had decided not

to rehire older former employees terminated in July 2013. Many affected

individuals shared these experiences with other salaried Spirit employees they

knew who also were terminated in July 2013.

156. In late 2013, Spirit announced a goal to hire hundreds of new

employees. Then, in January 2014, Spirit declared that it had met that goal. Soon

thereafter, Spirit broadcast its intention to hire hundreds more employees in the

first part of 2014.

157. Throughout 2014 and 2015, Spirit announced numerous openings

for salaried positions. In all, Spirit filled more than two hundred salaried

positions in each of these years. In some cases the salaried positions announced

and filled by Spirit resembled positions the Named Plaintiffs and others similarly

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situated held prior to their discharge in July 2013. Some Plaintiffs applied for

positions at Spirit for which they were qualified in late 2013, as well as in 2014

and 2015. In no instances of which Named Plaintiffs are aware, however, was any

older, former Spirit employee terminated in July 2013 hired to a permanent

position equivalent to that which they held before their termination. Rather, the

Named Plaintiffs only have learned of younger former Spirit employees,

terminated in July 2013, who have been rehired.

158. At some point, many Plaintiffs became discouraged and deterred

from applying for open positions at Spirit because of the Company’s failure and

refusal to hire them, and even to show any interest in considering their

applications. They, as well as others similarly situated who had not applied to

Spirit for rehire, heard from numerous reliable sources, including both current

and former Spirit employees, that Spirit had (and has) no intention of considering

their applications. In the well-founded view of the Named Plaintiffs and others

similarly situated, their age, their significant, costly, and/or potentially costly

medical conditions (or those of their formerly Spirit-insured family members),

and also their disabilities, are factors that made a difference in Spirit’s failure and

refusal to rehire them. Based on such conclusions, many Plaintiffs became

discouraged and deterred from ever applying (or from applying further) for rehire

for open positions with Spirit for which they are qualified.

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159. The vast majority – approximately 60% -- of the individuals hired by

Spirit since July 2013 (and in each of the first two years after July 2013) for

salaried, SPEEA-represented positions at the Wichita plant were under age 40,

and thus younger than the Named Plaintiffs and others similarly situated; in

addition, on information and belief, such new hires did not have (either

themselves or their family members) significant, costly and/or potentially costly

medical conditions or disabilities like those their terminated predecessors had;

nor are they associated with individuals with such conditions.

VI. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Age Discrimination (ADEA)—Collective Action – Termination –Disparate Treatment

(on behalf of all Named Plaintiffs and all others similarly situated)

160. Plaintiffs incorporate all paragraphs of this Complaint as if fully

set forth herein.

161. This claim is brought on behalf of all Named Plaintiffs, for

themselves and others similarly situated (“collectively the “Plaintiffs”) – former

Wichita-based, union-represented Spirit employees who were 40 years old or

older on July 25, 2013, the date on or about which Spirit terminated their

employment.

162 Plaintiffs were skilled, experienced aerospace workers with a solid

(or better) work record when Spirit terminated them on or about July 25, 2013.

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163. Plaintiffs had at least one significant, costly, and/or potentially

costly medical condition, and/or a record thereof, and/or one or more family

members with the same, while covered by Spirit’s self-insured employee health

insurance. Spirit’s senior management believed that Plaintiffs and/or their family

members with such conditions, and/or a record thereof, posed a high risk of

incurring large medical costs that the Company would have to pay.

164. In 2012, once Spirit decided to cut costs, it determined to do so by

terminating salaried employees in a series of RIFs culminating in July 2013, and

to that end, the Company designed and implemented a plan to terminate older

employees such as the Plaintiffs, in the belief that this would allow the Company

to avoid paying significant medical costs that senior management believed they

would incur in the future and that Spirit would have to pay under its self-insured

employee health insurance plan.

165. Spirit’s implementation of group terminations in 2013, and in

particular in July 2013, included measures the company portrayed as being

designed to identify low-performing employees. However, as carried out by

Spirit, these measures were pretexts for age discrimination. An example is

Spirit’s one-time expansion, from a few to hundreds in a single year, of the

number of older SPEEA-represented employees with a “C” “retention rating”

whom the Company “designated,” and thereby denied protection from

termination, by virtue of their seniority. Moreover, in general, many employees

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terminated in July 2013, including all the Named Plaintiffs, were not low

performers, but instead were solid (or better) performers with strong work

records.

166. Spirit’s implementation of group terminations in 2013 included

measures the company portrayed as efforts to eliminate jobs to achieve needed

cost reduction. However, as carried out by Spirit, these measures also were

pretexts for age discrimination. The jobs held by some of the Plaintiffs and other

older workers that Spirit claimed to eliminate were not actually eliminated, and

the RIF did not actually achieve supposed cost reductions, except by Spirit

absolving itself of responsibility for older employees’ health insurance claims.

167. Rather, within weeks of completing the July 2013 terminations,

Spirit began hiring younger employees for many jobs previously held by Plaintiffs.

Thus, on information and belief, the former jobs of many of the Plaintiffs were

not eliminated. Rather, in many instances Spirit simply replaced the Plaintiffs

with younger workers lacking significant, costly, and/or potentially costly medical

conditions (and/or family members with such conditions) whose expense Spirit

would have to pay under its self-insured employee health plan.

168. In short, by a variety of means, some of which remain to be

identified and specified in the course of this lawsuit, Spirit selected many

employees for termination in July 2013, including the Named Plaintiffs, because

of their age, and further, because Spirit assumed a correlation between their age

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and their (and/or their family members') significant, costly, and/or potentially

costly medical conditions. Due to that association, Spirit believed that Plaintiffs

would incur large medical costs that Spirit would have to pay.

169. Spirit’s selection of the Plaintiffs for termination in July 2013, in

which their age made a difference in Spirit’s decisions, violated the ADEA, 29

U.S.C. §§ 623(a)(1).

170. Spirit engaged in these actions willfully, and with malice or

reckless disregard for the federally-protected rights of the Plaintiffs.

171. As a result of Spirit’s conduct, Plaintiffs have suffered and will

continue to suffer significant injuries and losses. Plaintiffs seek remedies

described in the Prayer for Relief below.

SECOND CLAIM FOR RELIEF

Age Discrimination (ADEA) – Collective Action – Termination --Disparate Impact

(on behalf of all Named Plaintiffs and all others similarly situated)


set forth herein.

173. This claim is brought on behalf of all Named Plaintiffs, for

themselves and others similarly situated (collectively the “Plaintiffs”): former

Wichita-based, union-represented Spirit employees who were 40 years old or

older on July 25, 2013, the date on or about which Spirit terminated their

employment.

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174. Spirit selected older employees for inclusion in its July 2013

terminations using unreasonable criteria and related means that caused the

terminations to significantly, disparately, and adversely affect older workers,

including the Plaintiffs. Specific discriminatory, age-neutral selection factors

considered by Spirit included, but were not limited to, the following:

a. Spirit selected employees for termination based on their

and/or their family members’ significant, costly, and/or potentially

costly medical conditions, and/or records thereof, and the related

belief and assumption that such conditions would result in large

medical costs that Spirit would have to pay under its self-insured

employee health insurance;

b. in a change from past policy and practice, Spirit “designated”

all workers receiving a “C” on their most recent “retention rating,”

which had the foreseeable effect of rendering experienced, older

employees receiving such a rating ineligible to avoid termination by

being “bumped” up to a higher retention rating (e.g., a “B”) based on

seniority, as had been Spirit’s past policy and practice;

c. Spirit relied on low or lower employee “PM” and/or

“retention” ratings on the most recent performance reviews, even for

workers with a history of solid (or better) performance, and even for

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workers who incurred an unexplained and/or precipitous drop in

rated performance; and

d. in conducting employee performance ratings considered in the

RIF, Spirit relied on subjective criteria commonly associated with

negative age-based stereotypes (such as “versatility” and “criticality”

in conducting the 2013 retention exercise), and provided managers

and supervisors inadequate guidance and training about how to

apply such criteria so as to avoid age discrimination.

175. Other specific age-neutral means employed by Spirit to select

employees for termination in July 2013, as well as the nature and scope of the

disparate, adverse impact these factors had on older workers, remain to be

identified by the Plaintiffs in this lawsuit.

176. The specific age-neutral means employed by Spirit to select

employees for termination in July 2013, including those identified in ¶ 174, were

not “reasonable factors other than age”

177. Spirit’s selection of Plaintiffs for termination in July 2013, in which

non-reasonable factors other than age made a difference in Spirit’s decisions,

violated the ADEA, 29 U.S.C. § 623 (a)(2).

178. As a result of Spirit’s conduct, Plaintiffs have suffered and will

continue to suffer significant injuries, and losses. Plaintiffs seek remedies

described in the Prayer for Relief below.

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THIRD CLAIM FOR RELIEF

OWBPA Amendments to the ADEA – Collective Action -- Waiver ofADEA Claims Invalid

(on behalf of 19 Named Plaintiffs and all others similarly situated)


set forth herein.

180. This claim is brought on behalf of nineteen Named Plaintiffs (Sha,

Williams, Denny, Marks, Ballard, Ensor, Faris, Gardner, Harbaugh, Hoobler,

Koch, Longan, Miller, Poole, Rahbar, Sprague, Tolson, Troilo and Vines) for

themselves and others similarly situated, all of whom (hereafter the “Signers” or

“Signer Plaintiffs”) signed a severance document presented to them by Spirit on

or about July 25, 2013, in connection with their termination. The document

granted severance pay and other benefits on the condition that the Signer also

execute a waiver of all claims, including ADEA claims, related to their

termination.

181. All of the Signer Plaintiffs are protected by the strict notice

requirements of the OWBPA amendments to the ADEA, 29 U.S.C. § 626(f), which

apply to group terminations by virtue of the Signers’ acceptance of or capitulating

to a waiver of ADEA claims and their inclusion in Spirit’s July 2013 “termination

program offered to a group or class of employees,” 29 U.S.C. § 626(f)(1)(H).

182. Because Spirit implemented a “termination program offered to a

group or class of employees” culminating in July 2013, the OWBPA required

Spirit to provide a severance document and waiver of claims “written in a manner

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calculated to be understood by . . . the average individual eligible to participate” in

the benefits offered. 29 U.S.C. § 626(f)(1)(A). The termination program carried

out by Spirit does not satisfy this requirement.

183. Further, all older workers terminated in July 2013, including the

Signer Plaintiffs and others similarly situated, were entitled to various disclosures

regarding Spirit’s termination program. 29 U.S.C. § 626(f). Such disclosures are

required to allow affected older workers to decide whether to pursue ADEA

claims and/or to execute a waiver of ADEA claims. Without these disclosures,

such a waiver cannot be “knowing and voluntary”. Id., § 626(f)(1). OWBPA-

mandated disclosures that Spirit failed to provide include, but are not limited to,

the following:

a. individuals terminated and retained (i.e., those “selected …

and [those] not … selected,” 29 U.S.C. §626(f)(1)(H)(ii)) on July 25,

2013 as part of the same termination program in other affected Spirit

facilities, including, but not necessarily limited to, the Tulsa,

Oklahoma and Kinston, North Carolina locations;

b. individuals terminated and retained (i.e., those “selected …

and [those] not … selected,” 29 U.S.C. §626(f)(1)(H)(ii)) prior to July

2013 (e.g., in March 2013 and May 2013) in Spirit’s Wichita facility

as a part of the same termination “program” initiated in 2012 and

completed in July 2013;

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c. the “eligibility factors” for inclusion in Spirit’s termination

“program,” 29 U.S.C. § 626(f)(1)(H)(i), whether overall and/or

applicable to separate parts of the “program” executed at various

times and at various locations, or both; and

d. an accurate list of “the job titles and ages of all individuals

eligible or selected for the [termination] program,” 29 U.S.C. §

626(f)(1)(H)(ii), as the disclosure did not accurately identify “all

individuals eligible or selected.”

184. As a result of Spirit’s actions violating the OWBPA, the waiver of

claims is invalid as it unlawfully deprived the Signer Plaintiffs of access to the

legal process. Specifically, Spirit misled, delayed, deterred and impeded the

Signer Plaintiffs in exercising their right to file EEOC charges against the

company and to pursue ADEA claims against Spirit in this Court.

185. Due to Spirit’s conduct, the Signer Plaintiffs have suffered and will

continue to suffer significant injuries. They seek remedies described in the Prayer

for Relief below.

FOURTH CLAIM FOR RELIEF

Age Discrimination (ADEA) – Collective Action – Failure to Rehire –Disparate Treatment


186. Plaintiffs incorporate all paragraphs of this Complaint as if fully set

forth herein.

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187. This claim is brought on behalf of : (a) nineteen “Applicant Plaintiffs”

(Raymond, Heston, Williams, Denny, Hatcher, Marks, Bucchin, Ensor, Faris,

Gardner, Harbaugh, Hoobler, Jackson, Longan, Miller, Rahbar, Sprague, Troilo

and Vines and others similarly situated), who applied for one or more open

positions for which they were qualified, in response to Spirit job announcements

issued after July 2013, but for which they were not hired, despite their

qualifications; and (b) four “Deterred Applicant Plaintiffs” (Sha, Koch, Poole and

Tolson and others similarly situated), who were discouraged and deterred from

applying (or for applying further) for open positions with Spirit for which they

were qualified, after their termination in July 2013, because such applications

would have been futile due to Spirit’s age-discriminatory hiring policies and

practices as applied to persons terminated by Spirit in July 2013.

188. Spirit knew of the ages and medical records of the Applicant

Plaintiffs and the Deterred Applicant Plaintiffs (whether because of their status as

former employees, and/or their inclusion in the July 2013 terminations, and/or

their job applications, and/or other reasons) and their age made a difference in

Spirit’s decisions not to hire them and to establish a policy and practice of not

hiring former employees terminated in July 2013, regardless of their

qualifications. This conduct violated the ADEA, 29 U.S.C. § 623(a)(1).

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189. Spirit engaged in these actions willfully, and with malice or reckless

disregard for the Applicant Plaintiffs' federally-protected rights, and those of

others similarly situated.

190. As a result of Spirit’s conduct, the Applicant Plaintiffs and the

Deterred Applicant Plaintiffs have suffered and will continue to suffer significant

injuries and losses. They seek remedies described in the Prayer for Relief below.

FIFTH CLAIM FOR RELIEF

Age Discrimination (ADEA) – Collective Action – Failure to Rehire –Disparate Impact



forth herein.

192. After July 2013, Spirit implemented a policy, procedure, and/or

practice of rejecting applications for open positions from individuals terminated

in the July 2013 RIF.

193. Spirit’s failure and refusal to rehire former employees terminated in

the July 2013 RIF had a significant adverse disparate impact on the work

opportunities of former Spirit employees age 40 or above, including the Applicant

Plaintiffs and the Deterred Applicant Plaintiffs (see ¶187 above). Such disparate

impact was not based on “reasonable factors other than age” and violated the

ADEA. 29 U.S.C. §§ 623(a)(2), 623(f)(1); 29 C.F.R. § 1625.7.

80


194. As a result of Spirit’s conduct, the Applicant Plaintiffs and the

Deterred Applicant Plaintiffs have suffered and will continue to suffer significant

injuries and losses. They seek remedies described in the Prayer for Relief below.

SIXTH CLAIM FOR RELIEF

Violation of the ADA – Individual Claims - Termination Becauseof Disability

(on behalf of five individual Named Plaintiffs)


forth herein.

196. Named Plaintiffs Raymond, Heston, Hatcher, Bucchin and Jackson

declined to sign a severance agreement with Spirit when they were terminated in

mid-2013. Thus, they (the “Non-Signers”) may assert claims of disability

discrimination related to their terminations.

197. During relevant time periods, and in particular July 2013, when they

were terminated by Spirit, Non-Signers Raymond, Heston, Bucchin and Jackson

had one or more disabilities within the meaning of the ADA, as modified by the

ADA Amendments Act of 2008. Raymond, Heston and Bucchin were “regarded

as having” a disability – i.e., they allege that they had one or more “actual . . .

impairment[s]” without regard to whether “the impairment[s] limit[ed] . . . a

major life activity.” Named Plaintiffs Raymond, Heston, Bucchin and Jackson

further allege that they had actual disabilities – i.e., one or more “impairment[s]

that substantially limit[ed] one or more major life activities” or one or more

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“major bodily functions,” and/or that they had “a record of’ having such a

disability. 42 U.S.C. § 12102(1), (2), (3).

198. During relevant time periods, and in particular July 2013, the time of

her termination by Spirit, Non-Signer Hatcher’s husband had several disabilities

within the meaning of the ADA, including impairments of his kidney and liver

functions. On that basis, Named Plaintiff Hatcher asserted a claim of

associational discrimination under the ADA in her EEOC charge. This claim

concerns Spirit’s mistreatment of Hatcher’s due to her husband’s substantial

limitations in multiple major life activities and/or major bodily functions. See 42

U.S.C. §12112 (b)(4); 29 C.F.R. § 1630.8 (“Relationship or association with an

individual with a disability”).

199. During all relevant time periods, and in particular July 2013, Non-

Signers Raymond, Heston, Bucchin and Jackson could perform the “essential

functions” of their jobs “with or without reasonable accommodation” for their

disabilities, and thus, were “qualified” for their positions with Spirit. 42 U.S.C. §

12111(8).

200. Spirit violated the ADA by terminating Non-Signers Raymond,

Heston, Bucchin and Jackson on the basis of their disabilities, 42 U.S.C. §

12112(a), and also by terminating Non-Signer Jackson in retaliation for his

requesting reasonable accommodations for his disabilities, 42 U.S.C. § 12203.

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201. Further, Spirit violated the ADA by terminating Non-Signer Hatcher,

as well as Named Plaintiffs Heston and Jackson, on the basis of their association

with family members with disabilities, whose medical expenses were covered by

Spirit’s self-insured employee health insurance, and whose medical conditions

were known to Spirit. 42 U.S.C. § 12112(b)(4).

202. By firing the five Non-Signers on the basis of disability, Spirit

violated the ADA willfully and with malice or reckless indifference to their

federally-protected rights.

203. As a result of Spirit’s conduct, the five Non-Signers suffered and will

continue to suffer significant injuries and losses. They seek remedies set out in

the Prayer for Relief below.

SEVENTH CLAIM FOR RELIEF

Willful Violation of the FMLA – Individuals Claims – RetaliatoryTermination

(on behalf of three individual Named Plaintiffs)


forth herein.

205. Named Plaintiffs Heston, Hatcher and Jackson (the “FMLA

Termination Plaintiffs”) declined to sign a severance agreement with Spirit at the

time of their termination in July 2013. Hence, they may assert FMLA claims

related to their termination.

206. The FMLA Termination Plaintiffs, within a time proximate to their

termination by Spirit in July 2013, used FMLA leave to which they were entitled

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in order to care for their own serious health condition(s) and/or to care for the

serious health condition(s) of one or more family members covered by Spirit’s

self-insured employee health insurance.

207. Plaintiff Hatcher took intermittent FMLA leave in 2012 to care for

her husband’s serious liver and kidney conditions. Plaintiff Heston took FMLA

leave in March 2013 to care for his own serious medical conditions. Plaintiff

Jackson took FMLA leave in 2012 and annually for several years prior, to care for

his own and his daughter’s serious medical conditions.

208. Spirit decided to terminate each of the FMLA Termination Plaintiffs

at least in part because of and in retaliation for their use, request to use and/or

notice to Spirit of their intent to use FMLA leave to which they were entitled.

This conduct constituted discriminatory unlawful retaliation for their exercise of

their protected rights under the FMLA. 29 U.S.C. § 2615(a)(2); 29 C.F.R. §

825.220(c).

209. Spirit's retaliatory dismissal of the FMLA Termination Plaintiffs

constituted willful retaliation in violation of the FMLA. 29 U.S.C. § 2617(c)(2).

210. Due to Spirit’s misconduct, the three Plaintiffs have suffered and will



84


EIGHTH CLAIM FOR RELIEF

Violation of the ADA – Individual Claims – Refusal to HireBecause of Disability

(on behalf of 23 individual Named Plaintiffs and others similarly situated)


forth herein.

212. The Applicant Plaintiffs (identified in ¶ 187), each applied without

success for at least one open position with Spirit for which they were qualified in

response to Spirit job announcements issued after July 25, 2013. Spirit failed and

refused to hire each of them to fill the position(s) for which they applied on

grounds of their disabilities (as well as their ages).

213. The “Deterred Applicant Plaintiffs” (identified in ¶ 187), were

discouraged and deterred from applying (or from applying further) for open

positions with Spirit for which they were qualified, after their termination in July

2013, because such applications would have been futile due to Spirit’s hiring

policies and practices discriminating on grounds of disability in regard to persons

terminated by Spirit in July 2013.

214. Plaintiffs each had one or more disabilities, and/or were associated

with one or more family members with one or more disabilities within the

meaning of the ADA. Each of them and/or one or more family members had at

least one “impairment that substantially limit[ed] one or more major life

activities” or “major bodily functions”; moreover, each of them and/or one or

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more family members had an actual disability, and/or were “regarded as having”

a disability; and/or had “a record of” having a disability – during relevant time

periods, and in particular July 2013, the time of their termination by Spirit, and

further, at the time of their subsequent application(s) with Spirit. 42 U.S.C. §§

12102(1), (2).

215. Spirit’s knowledge of Plaintiffs’ disabilities, and/or their association

with family members with disabilities, made a difference in Spirit’s failure and

refusal to hire the Applicant Plaintiffs, in Spirit’s conduct discouraging the

Deterred Applicants Plaintiffs from applying for open positions, and in Spirit’s

establishment of policies and practices screening out applicants and potential

applicants with disabilities who were terminated in the July 2013 RIF. Such

misconduct also affected others similarly situated to Plaintiffs who may hereafter

join this case.

216. Spirit decided not to hire the Applicant Plaintiffs, to discourage

applications by the Deterred Applicant Plaintiffs, and to establish disability-

discriminatory policies affecting both groups willfully, and with malice or reckless

indifference to their federally-protected rights.

217. Due to Spirit’s misconduct, the Plaintiffs have suffered and will



86


NINTH CLAIM FOR RELIEF

Willful Violation of the FMLA – Individuals Claims – RetaliatoryRefusal to Rehire

(on behalf of six individual Named Plaintiffs)


forth herein.

219. Named Plaintiffs Heston, Hatcher, Marks, Jackson, Longan and

Rahbar (the “FMLA Rehire Plaintiffs”), within a time proximate to their

termination by Spirit in July 2013, used FMLA leave to which they were entitled

in order to care for their own serious health condition(s) and/or to care for the

serious health condition(s) of one or more family members covered by Spirit’s

self-insured employee health insurance.

220. Spirit decided to terminate each of the FMLA Rehire Plaintiffs in

July 2013 at least in part because of and in retaliation for their use, request to use

and/or notice to Spirit of their intent to use FMLA leave to which they were

entitled.

221. The FMLA Rehire Plaintiffs each applied for at least one open

position with Spirit for which they were qualified (and in the case of some of these

individuals, many such positions) in response to Spirit job announcements issued

after July 25, 2013, but Spirit failed and refused to hire each of them to fill the

position(s) for which they applied.

222. Spirit decided not to hire the FMLA Rehire Plaintiffs, at least in part,

because of and in retaliation for their prior use, request to use and/or notice to

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Spirit of their intent to use FMLA leave to which they were entitled prior to July

25, 2013.

223. Spirit decided not to hire the FMLA Rehire Plaintiffs willfully and

with malice or reckless indifference to the Applicant Plaintiffs' federally-protected

rights.

224. Due to Spirit’s conduct, the FMLA Rehire Plaintiffs suffered and will



PRAYER FOR RELIEF

WHEREFORE, the Named Plaintiffs, on behalf of themselves and others

similarly situated (collectively the “Plaintiffs”), respectfully request that the Court

enter judgment in their favor and award the following relief, to the fullest extent

allowed by law:

1) a Declaration that the waiver of claims made by the Signers violates

the OWBPA, 29 U.S.C. § 626(f), and therefore is null and void and in all respects

unenforceable in regard to claims under the ADEA, and that accordingly, all

Plaintiffs, and others similarly situated, including the Signers, may proceed with

their ADEA termination claims;

2) a Declaration that the Named Plaintiffs, as set forth above, are

similarly situated to other Wichita-based, union-represented, salaried workers

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who Spirit terminated on or about July 25, 2013, when they were age 40 or above,

and who Spirit then failed and refused to rehire based on a coordinated set of

practices whose discriminatory purpose and effect was to limit Plaintiffs’

employment opportunities based on their age, based on factors Defendants

supposed to be related to Plaintiffs’ age, and based on unreasonable non-age

factors, whose application had an adverse disparate impact on Plaintiffs and other

similarly situated older workers;

3) an Order directing Spirit to assist the Court and Plaintiffs to facilitate

notice of the collective action claims Plaintiffs propose to maintain, and the right

to opt-in to such a collective action for all former Spirit employees similarly

situated to the Named Plaintiffs;

4) a Declaration that the time for former Spirit employees similarly

situated to the Named Plaintiffs to file ADEA claims and to opt-in to this

collective action shall be tolled by the Named Plaintiffs' filing of collective action

charges of age discrimination with the EEOC, which placed Spirit on notice of the

collective action nature of this challenge to its July 2013 terminations and their

aftermath, including Spirit’s inclusion of a challenged waiver of claims in the July

2013 severance agreement, and its failure and refusal to rehire former older

employees wrongfully terminated in July 2013;

5) a Declaration that the time for former Spirit employees similarly

situated to the Named Plaintiffs, who seek to opt-in to this ADEA collective

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action, to file ADA claims related to their termination by Spirit and Spirit’s failure

and refusal to rehire them based on their disabilities, shall be tolled by the Named

Plaintiffs' filing of disability discrimination charges with the EEOC, subject to any

valid severance agreement they may have signed at the time of their termination

(barring otherwise valid ADA termination claims), as such ADA-based charges

put Spirit on notice of numerous others, i.e., other older former employees,

similarly situated to the Named Plaintiffs, who were terminated in July 2013, with

such ADA claims; and

6) an Order awarding the Named Plaintiffs and others similarly

situated:

a. Back pay, in amounts to be determined at trial;

b. Front pay, in lieu of reinstatement;

c. Liquidated damages as allowed under the ADEA and theFMLA;

d. Compensatory and consequential damages under the ADA;

e. Punitive damages as allowed under the ADA;

f. Injunctive and/or declaratory relief, including an unqualified

right to apply and receive fair consideration for future employment with

Defendants;

g. Pre-judgment and post-judgment interest at the highest lawful

rate;

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h. Attorneys’ fees and costs, including expert witness fees, asallowed; and

i. Any such further relief as the Court may deem just or

equitable.

Respectfully submitted,


/s/Randall K. RathbunRandall K. Rathbun #097658301 East 21st Street North, Suite 450Wichita, Kansas 67206(316) 262-4000 (p); (316) 265-3819 (f) [email protected] Attorneys for Plaintiffs

DESIGNATION OF PLACE OF TRIAL

COME NOW the plaintiffs and designate Wichita, Kansas as the place of

the trial of this action.




91


DEMAND FOR JURY TRIAL

COME NOW the plaintiffs and respectfully request a trial by jury with

regard to the above-captioned action.




92


Documents

st - AARP · Case 6:16-cv-01282-JTM-GEB Document 1 Filed 07/11/16 Page 1 of 92. COMPLAINT COME NOW the Named Plaintiffs D0netta Raymond, Frederick Heston, Jilun Sha, Randy Williams,